Templeton v. Bascom

33 Vt. 132 | Vt. | 1860

Kellogg, J.

It is urged on the part of the defendant against a recovery in this action, that his promise to pay the debt due from his deceased father to the plaintiffs, which is the cause of action declared on, is void under the statute of frauds, because it was not in writing and signed by him ; and that the consideration and promise declared on are different from the consideration and promise disclosed by the proof. A valuable consideration, however unequal, small, or nominal, if given or stipulated for in good faith, is, in the absence of fraud or statute provisions to the contrary, sufficient to support an action on any parol contract. In this case, the plaintiffs had a subsisting debt against the defendant’s father, which, at his decease, could have been proved against his estate, and thus made legally chargeable thereon, and the estate of the father was then more than sufficient to pay all debts and charges against it. On the neglect of the defendant to take administration of the estate of his father, the plaintiffs, as creditors, might have taken it, and the expenses of administration on the estate, including those of the proceedings before the commissioners of claims, would have been charges against the estate which would have diminished the amount of the estate belonging to the defendant as the sole heir of his father ; and the defendant had a clear and direct interest to avoid the lessening of the estate. The request of the defendant to the plaintiffs to give themselves no trouble about their account would naturally be interpreted as a request to forbear taking any steps to prove or enforce their debt against his father’s estate.' In view of the interest which the defendant had in that estate, such forbearance, or the agreement for it, on the part of the plaintiffs, at the request of the defendant, ought to be regarded as a sufficient consideration for the defendant’s promise to pay the debt. Where the promise to pay the debt of another arises out of some new and original consideration of benefit, loss, or harm moving between the newly contracting parties, the promise has always been considered an original and independent undertaking, and as not being a contract within the statute of frauds. The case of Oross v. Bichardson, 30 Vt., 641, in which the application of this clause of that statute was very fully discussed, is a decisive authority for this proposition. The consideration of the promise of the defendant was the waiving by the plaintiffs of their remedy against the estate of the defendant’s father, — a remedy to which they had an unquestionable right, — for the benefit of the defendant, and at his request. . His promise to pay the debt to the plaintiffs was founded not on the consideration of the original debt, but on a new consideration distinct from it, moving from the plaintiffs directly to himself, the entire benefit of which was anticipated or received by him. It is therefore to be regarded not as collateral to the original debt, but as an original and independent undertaking. We think that the promise was founded on a sufficient consideration, which is well stated in the declaration, and that it is not within the statute.

The alleged variance between the proof -and the declaration is this.: The promise as proved was “ to pay the debt very soon,”’ and, as stated in the declaration, it was “ to pay the debt, with interest, whenever thereto requested.” We think that the promise as proved contemplated the transfer of the debt to the defendant, and an assumption of it by him, as an immediate or present liability; and that in the absence of a stipulation for a definite time of payment, the promise to pay the debt “very soon” was equivalent to a promise to pay it presently, or on request. In this view, the promise as proved is stated in the declaration substantially according to its legal effect.

We are of opinion that the declaration covers the facts found in the case, and that those facts are sufficient in law to warrant the judgment of the county court in favor of the plaintiffs.

Judgment affirmed.