| Md. | Dec 15, 1870
delivered the opinion of the Court.
The questions in this case arise on the second and third instructions of the Court. The appellant has not insisted, in the argument, on any error in the rejection of his three prayers, or in the first and fourth instructions.
There is evidence in the record tending to prove that on the morning after the horses were delivered, by an employee of a rail road company, at the stables of the plaintiffs,'with a statement that he thought they were Thomas and Spicer’s property,. the appellant came to the plaintiffs • and said the horses were his property, and contracted for their livery.
There is no error in the second instruction. If the jury believed this evidence, the plaintiffs were entitled to recover. No questions of original and collateral responsibility arose under the instruction. It was simply a question of liability of the appellant on his own contract, under which the livery was furnished.
The third instruction, as we construe it, is erroneous. In examining it, we are confined to the proposition of law contained in it, and cannot look, outside the instruction, to evidence in the record, to see whether another proposition may not have been contemplated. The hypothesis contained in it .is, that if the jury find that the horses were the property of Spicer, and that the plaintiffs were about to take legal proceedings for the recovery of a claim for livery furnished by them, and that the appellant agreed to pay the claim if they would forbear to take legal proceedings at that time, and that they did forbear, then the plaintiffs ai’e entitled to recover. On what ground ? That Thomas, the appellant, had agreed
If this were the law which the instruction was intended to announce, it was erroneous, and it is not susceptible of any other construction. It is based on the idea that Spicer was sole owner of the horses, and as such originally liable for the debt.
It has been settled, by the case of Fish vs. Hutchinson, 2 Wils., 94, adopted by the Court of Appeals in Elder vs. Warfield, 7 Har. & John., 396, and various other cases, that a promise to pay the debt of another, in consideration of forbearance to sue the original debtor merely, without any new or superadded consideration passing between the promisor and promisee, is within the Statute of Frauds, and must be in writing.
Forbearance to take or to continue proceedings against an original debtor, is a good consideration for a promise by a third person to pay the debt, but the promise must be by writing and not by parol. "What is a sufficient consideration to sustain a parol promise, is a question which has arisen in many cases in England and in this country, presenting great varieties of circumstances; and perhaps the variety of circumstances, l’ather than uncertainty in respect to the rule itself, has given rise to the apparent conflict of authority. The difficulty has been rather in the application of the rule than in the rule itself. As stated in Mobet'ts on Frauds, 232, it is, that if the consideration of the new promise “spring out of any new transaction, or move to the party promising, upon some fresh and substantive ground, of a personal concern to himself,” the Statute of Frauds does not attach. And Browne on Statute of Frauds, (sec. 212,) after a thorough examination of all the cases in which the question has arisen, states it thus: “Wherever the transaction between the parties is such that the primary and distinctive obligation assumed by the defendant is different from that of a guarantor, although, as incidental to, and
If the instruction, in this case, had been based on an hypothesis, that the appellant had in his possession, in March, 1865, horses belonging to Spicer, or in which Spicer had an interest, jointly with the appellant or otherwise, which possession of the appellant was in the course of some proceeding for, or for a purpose of, realizing some real or supposed benefit or advantage to himself therefrom, and which might have been seized by the appellees under an attachment against Spicer, and that the appellees notified the appellant that they were about to issue such attachment, and he thereupon promised that he would pay their claim against Spicer, if they would forbear to do so, and to seize the horses in his possession, and they did forbear, it would have presented the question of a new or superadded consideration between the promissor and promissees, and have been within the rule stated. In that case the promise would be not to pay the debt of Spicer, in consideration of forbearance to sue Spicer, merely, but to pay it in consideration of forbearance to seize the horses in the appellant’s possession, held by him for his benefit. The promise would be, not simply to pay the debt of another, but in effect, to pay an amount of money, equal to the debt of another, in consideration of the benefit, real or supposed, conceded to the promissor by the promissee forbearing to interfere with his possession.
Such was not, however, the instruction in this case, nor is such a state of facts clearly set out in the record, although the record does contain a statement from which it might be inferred, perhaps, that such facts existed.
The second instruction being correct, but the third erroneous for the reasons assigned, the judgment must be reversed.
Judgment reversed and
new trial awarded.