| Minn. | Jul 15, 1861
By the Court.
This case comes here upon an appeal from a judgment of the District Court of Rice County, reversing a judgment of a Justice of the, Peace upon certiorari. The complaint is upon an account for the hire of horses and carriages to the amount of $16.50, and ior the rent of a house to the amount of $58. The answer partially admits the account for the livery bill, and denies the rent, alleging that the Defendant never was tenant of the Plaintiff, but that. one Rosanna McDonald was, and that she alone occupied the house for which the rent is claimed, and that she is alone responsible for the same. It also sets up an action by the Plaintiff against Rosanna McDonald, to recover the premises for which rent is claimed against the Defendant. The answer also sets up a counter claim for work and labor to the amount of $17.10. No reply was filed.
Supposing the Justice to have been right in allowing the whole of the Plaintiff’s claim, he evidently fell into some error of calculation, as he rendered a judgment for $58.40, when no theory could mate it more than $57.40. This, however, would not have been sufficient to reverse the whole judgment, as it is clear that it arose from mistake merely in figures, the Justice not being at liberty to reduce the amount of the the Defendant’s set off.
The proper disposition of the case by the District Court, had this been the only error disclosed by the record, would have been to reduce the judgment by striking out the excess to what it should have been, under section 1S>2>,page 516, of the Compiled Statutes, where ample power is given to correct such errors.
The principal question, however, arises upon the liability of the Defendant for the rent. Rosanna McDonald, the mother of the Defendant, had a lease of the premises in question in 1858, under which she was to pay rent for them, at the rate of $12 per month. About the first of April, 1859, the Plaintiff and Mrs. McDonald had a settlement under the lease, in which the Plaintiff threw off all the back rent over six dollars a month, and settled at that rate. ' At this time Mrs. McDonald expressed a desire to remain a short time longer in the house, and the Plaintiff told her that she could remain at six dollars a month if Mr. Tapley did not send him a tenant from Hastings. The Defendant, who was a stranger to the Plaintiff, and had had nothing to do with the lease or the settlement under it, being present, remarked, “ If you will let mother stay, I’ll be responsible for the rent, and see that it is all right.” The Plaintiff, after hearing from Mr. Tapley, met Mrs. McDonald, and told her she might remain. He also testifies that had it not been for the promise of the Defendant,
It is quite clear that the contract for leasing the house was made with Mrs. McDonald. She was paying rent at the time for the house, was in possession under the first lease, 'and requested to remain, and the Plaintiff told her she could remain on the same terms she had just settled for the arrear-ages of rent. It was in fact a continuation, extension, or renewal of the lease under which she had previously held the house. There can be no pretense that the house was leased to the Defendant. His contract was, “ If you will let mother stay,” that is, if you will not interrupt the present relations that exist between you, keep her as your tenant, “ I will be responsible for the rent, and see that it is all right.” That is, I will see that your tenant pays her rent, or, in other words, if she don’t, I will. The promise was clearly collateral to the principal obligation of Mrs. McDonald under the lease. She could have been sued for the rent beyond a doubt. I have no doubt from the testimony, that the promise of the Defendant was an essential ground of the credit given to his mother; and being made at the same time with the principal contract, requires no other consideration than that moving between the creditor and the original debtor. Yet, to give such a promise validity, it must be in writing, and in some way express the consideration.
A large number of cases are cited upon the briefs of counsel on both sides, most of which I have examined. I find no case that states the law upon this subject with more clearness than that of Leonard vs. Vredenburgh, 8 John. 29, where Chancellor Kent, at page 39, classifies the cases under three general heads, as follows:
“ 1st. — Cases in which the guarranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor. Here * * * is not, nor need be.*462 any other consideration than that moving between the creditor and the original debtor.
“2d — Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attach to this subsequent promise.
“ 3d. — When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm, moving between the newly contracting parties.
“The two first classes of cases are within the statute of frauds, the last is not.”
The case at bar clearly falls within the first class. It was made simultaneously with the promise of Mrs. McDonald, upon no other than the consideration of leasing her the house, and became an essential ground upon which the credit was given to her, and being in parol was void. See also Note g, Toy the reporter, at the end of Leonard vs. Vredenburgh, where a great variety of cases, bearing upon different views of the question, are collected.
I have found no case that materially changes the law as it is stated by Chancellor Kent in the case above cited, and we are all clear that his exposition of the statute is the correct one. The judgment of the Justice was erroneous in holding this to be an original undertaking on the part of the Defendant, and the District Court was correct in reversing it. The latter judgment must be affirmed.