Thornton v. Guice

73 Ala. 321 | Ala. | 1882

SOMERVILLE, J.

— Under the provisions of our statutejif frauds, “every special promise to answer for the debt, default or miscarriage of (mother” is void unless it is reduced to writing, expressing the consideration, and subscribed by the party to be charged. — Code, 1876, § 2121; Rigby v. Norwood, 34 Ala. 129; Dunbar v. Smith, 66 Ala. 490.

In all cases, however, where the original debtor is entirely released or discharged, and the obligation or promise of a third person is substituted in place of that of the discharged debtor, the statute of frauds has no application, and the new debt thus created is binding on the substituted promisor, or debtor. It is Ms mm debt, and can no longer be said to be the debt of another. It is rather an original and independent contract, based upon a valuable consideration of detriment to the promisee, the release of'the former debt. . The purpose of the statute of frauds, in this particular, is to discourage certain oral agreements of a collateral character, 'in the nature of a guaranty, where the new promise is accessory to the antecedent one, the original debtor still remaining liable. It pronounces tobe void oral suretyships for precedent debts, and not substitutes of new and original debts for old ones, which are in the nature of a novation. “The leading doctrine,” says Mr. Bishop, “is, that to render it necessary for the promise to be in writing, the principal must be and remain liolden ; that is, the debt must be due, not from the promisor, but from ianother,’ to whom, the promisor-sustains the relation of surety.” — Bishop on Contr. § 519 ; Underwood v. Lovelace, 61 Ala. 155; Brown on Stat. Frauds, § 193; Locke v. Humphries, 60 Ala. 117; Mason v. Hall. 30 Ala. 599; Dunbar v. Smith, 66 Ala. 490; Leonard v. Vredenburgh, 8 John. 23; McKenzie v. Jackson, 4 Ala. 230; Putnam v. Farnham (27 Wis. 187), 9 Amer. Rep. 459; Boykin v. Dohlonde, 37 Ala. 577; Bishop on Contracts, §§ 518-521, and cases cited.

If the four new notes executed by the Lockes, in December, 1875, were delivered to the plaintiff, as a substitute for the note sued on, and upon the agreement that the defendants’ liability upon it should be discharged, the statute of frauds would not apply to the case; and there would be no necessity that the new notes should express the consideration for which they were given. They would clearly constitute a valid consideration, too, for the release of the old debt, one legal'promise being -always regarded as a good consideration for another. The court erred in giving charge numbered two, requested by the plaintiff.

The other assignment of error, insisted on by appellants’ counsel, need not be considered, as the point is one not likely to arise upon another trial.

Reversed and. remanded.