Underwood v. Lovelace

61 Ala. 155 | Ala. | 1878

BBJCKELL, C. J.

A promise, verbal or written, to pay the debt of another, if not founded on a precedent liability, or a new consideration, will not support an action. — Hester v. Wesson, 6 Ala. 415; Beall v. Ridgway, 18 Ala. 117; Rutledge v. Townsend, 38 Ala. 712; Watson v. Reynolds, 54 Ala. 191. But if by the arrangement between the parties, the original debtor is discharged, and a new debt is created binding alone on the promissor, the promise whether verbal or written, is supported by a valuable consideration, and will be enforced. — Brown on Statute of Frauds, § 193; 2 Am. Lead. Cases, 205; Corbett v. Cochran, 3 Hill (S. C.) 41; Anderson v. Davis, 9 Verm. 136; Leonard v. Vradenburgh, 8 Johns. 29; Click v. McAfee, 7 Port. 62; Thompson v. Hall, 16 Ala. 204; Murrah v. Br. Bnk. Decatur, 20 Ala. 392. Nor is it necessary that there should be any consideration moving between the promissor and the original debtor. — Minet, Ex parte, 14 Vesey, 189. It is enough that the creditor sustains the detriment, which follows from the extinguishment of his demand against the original debtor. A different, doctrine is asserted in Williams v. Sims, 22 Ala. 512. The privity or assent of the original debtor so that he would become liable to the promissor, it was held, was necessary to furnish a legal consideration for the promise. A debt may be paid by a stranger, or by the debtor, and as between the debtor and the creditor, the demand is extinguished by the payment, no matter from whom it proceeds. As between the debtor and the person paying, questions may arise, whether the payment was purely voluntary or not, and these may depend on the fact of previous request, or subsequent assent. — Harrison v. Hicks, 1 Port. 423. Such questions are not material as between the promissor and the creditor. If the debt is -extinguished — if the creditor parts with and loses"the right to proceed against, and enforce the liability of the original debtor, the detriment he sustains is a sufficient consideration for the promise, though as between the original debtor and the promissor, the promise is voluntary and gratuitous. Corbett v. Cochran, supra. A creditor may accept of -whatsoever he will in satisfaction of a debt. He may take the promissory note of the debtor; or he may accept the promise -of a stranger, verbal or written, without inquiring into the motives or consideration which induce him to the promise. 'Whether these are motives of generosity, or of kindness to the debtor, which would support a gift to him of the debt, or whether the promissor is moved by his request, can not affect his liability. The pre-existing debt, of legal obligation on the original debtor, extinguished as to the creditor, is a valuable consideration which will support the promise. We think the case of Williams v. Sims, is erroneous on this point, and inconsistent with other decisions of this court, and must be overruled.

There was evidence showing that the purpose of the appellaxxt was to pay the debt of Butler, and that the xnoney paid by him when he executed the notes, and the notes, were .accepted by the appellees as a payment of the debt, and not as a security for it. The exceptions reserved, are all founded on the hypothesis, that the notes were without consideration, unless the payment was in consequence of a previous request from, or the subsequent assent of Butler; such request or assent not being necessary, the exceptions can not be sustained.

The judgment is affirmed.