Sharman v. Jackson

47 Ala. 329 | Ala. | 1872

PEOK, C. J.

The demurrer to the complaint was properly overruled. We know of no authority permitting a demurrer for an alleged departure in the complaint from the writ of attachment. The usual remedy, in such a case, is to move the court to strike the complaint from the files; but such a motion should not be sustained unless there is a total variance — a radical departure. — Otis v. Thorn, 18 Ala. 395; Chapman v. Spence, 22 Ala. 588; Smith v. Wiley, 19 Ala. 216; Morrison v. Taylor, 21 Ala. 797. The alleged departure, in this case, consists of an unimportant variance between the amount of the debt, as stated in the writ of attachment, and that stated in the complaint.

2. The statute of frauds declares every special promise to answer for the debt, default, or miscarriage of another person, void, unless such promise, or some note or memorandum thereof, expressing the consideration, is in writing* and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing. — Revised Code, § 1862. Let it be admitted, that, the money alleged to have been advanced to Mrs. Ward by the appellee, plaintiff below, as the administratrix of W. Jackson, created a debt that Mrs. Ward was legally bound to pay, or that might have been charged to her on the final settlement of said W. Jackson’s estate; (which, however, on the evidence, we think by no means clear;) then, the promise of the appellant, to say the most of it, was a promise to pay that debt, a mere special promise to answer for the debt of another person; and as it was not in writing, is declared void by the section of the Revised Code above referred to. The charge given by the court is clearly erroneous. The statute of frauds was pleaded; and to sustain that charge, on the evidence in this ease, will be utterly to disregard the plain language, of the statute, and to permit a recovery on a promise to pay the debt of a third person, even without any evidence that the promise was in writing.

3- The said charge is erroneous for another reason. The evidence set out in the bill of exceptions, left it altogether uncertain whether -the alleged promise of the appellant, to pay the money said to have been advanced to Mrs, Ward by the appellee, was to be fulfilled by appellant, when the lands referred to were sold, or when the purchase-money should be collected. One witness understood the promise to be, that appellant would' pay the money when the said lands were sold; and the other witness understood that said payment was to be made wihen the purchase-money was collected. If the latter witness was correct in this, then the suit was commenced before the cause of action occurred, as it appeared by the evidence that the purchase-money for said lands was not collected, or any part of it, until some years after the suit was commenced. Considering this uncertainty, (if the statute of frauds bad not been in the way,) the court should have left it to the jury to determine, whether the promise was to pay when the lands were sold, or when the purchase-money was collected, and instructed the jury to find for the plaintiff or defendant, as they might determine this uncertain question of fact.

This objection is not avoided by the fact, that the suit was commenced by attachment; true, an attachment may be sued out on a debt not due, but the attachment in this case itself shows it was issued on a debt then past due.

The judgment is reversed, at the appellee’s cost, and the cause is remanded for further proceedings, &c.