43 N.H. 485 | N.H. | 1862
A brief statement of set-off was, in substance, that in consideration that said Gilman would not bring a suit on two promissory notes due to him from one Eollins, and summon said Eobinson as trustee of said Eollins, he would procure said notes to be settled and paid to said Gilman; that said Gilman did not bring such suit and did not summon said Eobinson as trustee, whereby said Eobinson became liable to perform his promises aforesaid. This statement was rejected, because, as we infer from the argument, it is a claim for uncertain and unliquidated damages, and therefore inadmissible as a set-off.
In Drew v. Towle, 27 N. H. 427, the case of Hepburn v. Hoag, 6 Cow. 613, is cited to the point, that the insertion of the word demands in the New-York statute of set-off did not authorize a set-off of uncertain damages, their statute being in this respect similar to ours; and the same rule was adopted in that case. The question consequently is, if the claim here set up is a claim for unliquidated damages; and it does not strike us in that light. Though not in terms a guaranty.of the two promissory notes described in the set-off j it was in substance such a guaranty — a contract to procure the notes to be paid. The rule of damages, in such a case, can only be the amount due on the notes for principal and interest — an amount to be ascertained by simple computation. Our impression then is, that this set-off should have been admitted.
At a later stage of the case, the court held the evidence introduced incompetent to support the set-off, which had not been rejected, on the ground of variance. This set-off is stated in the same form as that before recited, except in the terms of the promise, which are, first, “that he would pay said notes”; second, “that he would pay to said Gilman a sum equal to the amount of said notes and interest.” The evidence relied on to prove the alleged promise is, “that Eobinson said he would call on Gilman and have some arrangement made; that he did not want a suit commenced; that no suit was commenced; that after this the witness was informed by either Eobinson or Gilman, or both, that the matter had been
On his cross-examination, the witness says that Robinson did not say he would pay the notes, or procure them to be paid, but said he would see Gilman and have some arrangement made about it, without having any suit, or that he would see Gilman and see if some arrangement could not be made to prevent bringing a suit. It is very apparent that Robinson, as well as the witness, understood that he was making an agreement which was to supersede the necessity of a trustee suit against him. In many cases it is not so much the question what terms were used, as what was intended. "Where the words are certain, it is generally for the court to construe them; but where the jury must decide what was said, they must also judge what was the meaning of the parties in the language they are found to have used. If the evidence tends to prove an engagement inconsistent with that alleged, and it is capable of no interpretation that can be reconciled with it, the court may pronounce the evidence incompetent on the ground of variance; but where the evidence admits of being understood, in a sense which would support the declaration, and the doubt is whether it is quite sufficient to support the writ, it seems generally more advisable to leave the question to the jury, who are supposed to be more able to judge of the weight of the testimony, as to the facts, than the court. As the jury might perhaps have been persuaded that the meaning of the language used was, that Robinson would pay, or settle the notes, or cause them to be settled, and that it was so understood by the parties, we think that question should have been submitted to the jury.
It is insisted that the promise in question is to pay the debt of another, and is therefore within the statute of frauds. That statutory provision here is substantially the same as in England, and is held to receive the same construction. The promise here is in terms to pay the debt of Rollins. That debt still remains in full force against Rollins, and the promise is therefore collateral to it. It falls within the terms of the statute, and must be governed by it, unless there is some recognized exception -within which it may fall.
It is competent for the court- to establish exceptions to statutes, expressed in general and sweeping terms, where cases are found to
The exception to which we refer is, that if the debt of another, which a man promises to pay, is also his own debt, the statute has no application. His promise to pay his own debt is not required to be in writing, and the courts have held, with great reason, that if a person, when promising to pay his own debt, thereby engages to pay the debt of another person, this incidental effect shall not render his verbal promise ineffectual. Nelson v. Boynton, 3 Met. 396. A debtor, for instance, pays the amount of his debt to a third person, who thereupon promises to pay it to the creditor; by the receipt of the money he becomes debtor for it, and his promise to pay it to the creditor is but a promise to pay his own debt, though it will also discharge the original debtor. Nelson v. Boynton, 3 Met. 396; Pike v. Brown, 7 Cush. 136; Todd v. Tobey, 29 Me. 214; Barker v. Bucklin, 2 Denio 45.
To make the debt his own, it is indispensable that the promisor should have received an adequate consideration from the original debtor, or the creditor. 2 Leigh’s N. P. 1031; Thomas v. Williams, 10 B. & C. 679; Stevens v. Pell, 2 C. & M. 716; Alger v. Scoville, 1 Gray 396; Curtis v. Brown, 5 Cush. 491.
It is not enough that a consideration, which would be good and sufficient to sustain a contract in other cases, that is, “some benefit to the party promising, or some trouble, prejudice, or inconvenience to the party to whom the promise is made,” has passed between the parties; nor is it enough that a legal or sufficient consideration has passed between the original debtor and the creditor, at the request of the promisor, to bring a case within this exception. Curtis v. Brown, 5 Cush. 491.
Thus, to except a promise from the statute, it is never sufficient that the promisee has agreed to allow time to the debtor; Jackson v. Raynor, 12 Johns. 291; Smith v. Ives, 15 Wend. 182; Parker v. Wilson, 15 Wend. 343; Watson v. Randall, 20 Wend. 201; or to forbear to bring a suit against him for a time; Simpson v. Patten, 4 Johns. 422; Smith v. Ives, 15 Wend. 182; Watson v. Randall, 20 Wend. 201; King v. Wilson, 2 Stra. 873; Fish v. Hutchinson, 2 Wils. 94; Kirkham v. Martyr, 2 B. & Ald. 613; 1 Saund. 211, a; 10 N. H. 32; or has discharged a suit against Him; Nelson v. Boynton, 3 Met. 396; Tomlinson v. Gell, 6 A. & E. 564; Rowe v. Whittier, 21 Me. 545; or has released to the debtor any lien; Mallory v. Gillett, 7 Smith (21 N. Y.) 412; Fay v. Bell, Lalor 251; or pledge; Clancey v. Piggott, 2 A. & E. 473; or an attachment; 20 Wend. 184; or levy; Mercum v. Mack, 10 Wend. 461; Charter v. Beckett, 7 T. R. 201. And the same is true of any consideration which passes merely between
In the following cases the promise has been held binding without writing : (1) Where the debtor has put into the hands of the promisor the amount of his debt; Hilton v. Dinsmore, 21 Me. 413; Lawrence v. Fox (20 N. Y.), 6 Smith 268; Blunt v. Boyd, 3 Barb. 209, Harris, J.; (2) or transferred to him property equivalent; Skelton v. Brewster, 8 Johns. 376; Gold v. Phillips, 10 Johns. 412; Farley v. Cleaveland, 4 Cow. 432; S. C., 9 Cow. 639; Elwood v. Monk, 5 Wend. 235; Barker v. Bucklin, 2 Denio 45; Pike v. Brown, 7 Cush. 136; Alger v. Scoville, 1 Gray 396; Preble v. Baldwin, 6 Cush. 552; Todd v. Tobey, 29 Me. 224; Dearborn v. Parks, 5 Me. 83; Bird v. Gammon, 3 Bing. N. C. 883; Browning v. Stallard, 5 Taunt. 450; Wait v. Wait, 28 Vt. 350; Olmstead v. Greenley, 18 Johns. 12; Meech v. Smith, 7 Wend. 317; Gardner v. Hopkins, 5 Wend. 23; King v. Despard, 5 Wend. 277; Whitbeck v. Whitbeck, 9 Cow. 266; (3) or something of equivalent advantage to himself, as a license to keep a public house; Walker v. Taylor, 6 C. & P. 752; (4) or where the promisee has transferred or releaséd to the promisor some interest in the property of the debtor; Barrett v. Trussell, 4 Taunt. 17; Thomlinson v. Gill, Ambler 330; as a lien given by law to the seller for the price of goods sold, but not delivered; Fitzgerald v. Dressler, 5 C. B. (N. S.) 893; or to a landlord upon the goods of his tenant for / rent; Williams v. Leper, 3 Burr. 1886; Slingerland v. Morse, 7 Johns. 463; Thomas v. Williams, 10 B. & C. 679; Edwards v. Kelly, 6 M. & S. 204; Bampton v. Paulin, 4 Bing. 264; Stephens v. Pell, 2 C. & M. 710; or of a bailee for services; Houlditch v. Milne, 3 Esp. 86; Mallory v. Gillett, 7 Smith 412; or of an insurance agent on policies in his hands; Castling v. Aubert, 2 East 325; (5) or where the promisee has released to the promisor and holder of the property an attachment; Cross v. Richardson, 30 Vt. 642; or a trustee process; Cross v. Richardson, 30 Vt. 642; (6) or where he has released to the promisor the right to attach property of the debtor; Lampson v. Hobart, 28 Vt. 697; or to bring a suit in the admiralty to enforce a lien; Fish v. Thomas, 5 Gray 45; or to bring a trustee suit against a party having funds of the debtor in his hands; Cross v. Richardson, 30 Vt. 642; the last seeming to us to stand on the same grounds as the cases of Lampson v. Hobart, and Fish v. Thomas. The principles upon which these cases were decided were adopted by the superior court in the case of Allen v. Thompson, 10 N. H. 32, where the plaintiff had obtained the account book of his debtor, as a pledge to secure the debt, and the defendant, in consideration that the plaintiff' would deliver the book to one B to collect the demands, verbally promised the plaintiff' to pay him the amount due from the debtor, if B could not collect enough for that purpose, and it was held that the contract was not within the statute of frauds. In this case, says Parker, C. J., there is not only a new consideration, but one which is distinct from and independent of the debt; and the delivery of the books to B, on the defendant’s request, being in effect the same as a delivery to the defendant himself, this new consideration passes between the parties to the new contract. Oases of
In the case before the court, it appears that the plaintiffs’ intestate had had large dealings with Eollins, the original debtor, who had failed; and no settlement had been made between them; that Eobinson had been trusteed by others, and had been examined at length as to their transactions, and was then unwilling to answer further; the defendants’ intestate employed an attorney to commence a trustee suit against Eobinson as trustee of Eollins, who conversed with him in relation to the suit; that he was very unwilling to be trusteed, and then gave the assurances relied upon by the defendant. Eollins was no party to the negotiation, and the benefit to be derived from Gilman’s omission to sue, was wholly Eobinson’s. He was assumed by Gilman to have in his hands property or funds for which he might be charged as the trustee of Eollins. If he had such funds, or property, and of sufficient amount to pay Gilman’s debt, the waiver by Gilman of his right to commence a trustee suit would form such a consideration for his promise as would make it valid without writing, according to the principles adopted by the authorities. The promise to pay the debt was an admission, or might be regarded as an admission by the jury, that he had property for which he might be chargeable to the amount of these notes, as was held in Jackson v. Rayner, 12 Johns. 291.
It would seem, then, that the question what was the intention and meaning of Eobinson in the assurances which he gave, and the question whether he had funds of Eollins’ in his hands, should have been submitted to the jury.
New trial granted.