27 Miss. 823 | Miss. | 1854
delivered the opinion of the court.
The merits of this case, as now presented, are not materially changed from what they were when it was heretofore in this court as reported in 13 S. & M. 599; and we consider that decision conclusive of it as it is now presented.
The object of the suit was to fix upon the testator of the plaintiff in error a personal liability for a debt due by his deceased wife, which it is alleged he became individually liable to pay after her death, he being her executor, in consideration of forbearance by the defendant in error; and the question is, whether he became so liable or not. The defence was, that there was no such note or memorandum in writing as is required by the statute of frauds and perjuries, to charge the executor of the wife with the debt out of his own estate.
It is, therefore, conclusively settled that the letters cío not constitute <a sufficient memorandum in writing to charge Hurd in reference to the statute of frauds, and it is immaterial whether the propositions contained in them were accepted or not by Kirkman, so far as the object of this suit is concerned. If. accepted, his liability was only that contemplated by the letters, and he was not personally bound; if not accepted, there is no pretence to sustain the action.
But it is manifest that the propositions contained in the letters were not properly accepted, for if they had been, this suit
We think it clear, that the liability could not be established by that means. It was the writing, and the arrangement made in pursuance of it, that fixed the liability of Hurd. If the terms of the proposition were accepted and the arrangement carried out accordingly, the liability would, of course, be complete. But if those terms are materially changed subsequently by the parties, and a new and different agreement is made between them in relation to the same subject-matter, such agreement would not be valid in law and the foundation of a personal liability, unless evidenced by writing signed by the party to be charged by it. It would not be the acceptance of the proposition in writing, but a different agreement not evidenced by writing. A parol acceptance would certainly be sufficient in many cases; but it must be of the written proposition according to its terms, for otherwise the writing would not show the agreement made between the parties, and all the evils of uncertainty intended to be prevented by the statute of frauds would follow. This, we think, would be the rule in such cases even where it is positively shown that the terms of the contract as proposed in writ
It is insisted in behalf of the defendant in error, that as Hurd proposed to give his notes to Kirkman in consideration of forbearance, and the proposition was accepted, the notes, if they had been given, would have bound Hurd individually, though he intended to bind the estate. This may be true; but it by no means follows that he would be personafiy bound if the notes were not given. The liability in such case would not arise from his assumption of the debt of the estate, and it would depend upon principles wholly distinct from the statute of frauds. The question here is, not whether the notes, had they been given, would have imposed a personal liability on Hurd, but what was the intention of Hurd in making the propositions, the notes not having been given, and whether he intended to become personally bound for the debt. And this point has already been determined by the former decision of this court in the case.
Another objection urged in behalf of the plaintiff in error is, that the letters are insufficient to create a personal liability, because they are uncertain as to the amount of the debt alluded to, and indefinite in proposing simply a forbearance for five or six years, and in not specifying the time from which the arrangement was to take effect.
The rule upon this point is well settled to be, that the memorandum, in order to satisfy the statute, must contain the substantial terms of the contract expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence. Boydell v. Drummond, 11 East, 142; Parkhurst v. Van Courtlandt, 1 J. C. R. 280; 1 Sug. Vend. (1 Amer. ed.), 89; Blagden v. Bradbear, 12 Ves. 466. For otherwise all the danger of perjury, intended to be guarded against by the statute, would be let in. And when reference is made in the memorandum to
Applying these rules to the letters relied on in this case, it is clear that they are deficient in the certainty required. It was necessary either that they should show the amount of the debt proposed to be assumed, or refer to some waiting showing it in plain and distinct terms. But nothing of this kind appears upon their face. None of them contain the amount, nor is the account sued on referred to as a written paper in such terms as to show beyond doubt that it was referred to. Under the indefinite expressions of the letters, any other account for any large amount might as well have been referred to as the account sued on in this cage; for the debt is not even referred to as existing in the form of a stated account. Nor can we, under such circumstances, indulge in probabilities and so determine what was intended; for this would be worse than positive parol evidence, which is excluded by the statute.
On the trial below, the court refused to give the following instructions to the jury at the instance of the plaintiff in error.
“ That the letters in evidence before the jury, written by defendant’s testator, are not such written promises as under the statute of frauds would charge the said Hurd personally or his estate after his death, with the debt sued for in this case.”
“ That an offer by Mr. Hurd to give his note or notes for the payment of plaintiff’s claim, which was never carried out, imposes no liability on Mr. Hurd personally, or on his estate.”
Under the view we have taken of the evidence, these instructions were correct, and should have been given by the court.
It is further contended in behalf of the plaintiff in error, that the court below erred in refusing the motion to compel the plaintiff below to join in the demurrer to the evidence tendered by the defendant, and that this court should pronounce the judgment which that court should have pronounced on joinderin demurrer of the evidence.
The first of these positions we do not think correct under the-state of the case shown in the record. The case of the plaintiff consisted partly of the letters written by the defendant’s tes
As to the second position, so far as we have been able to find that the question has been adjudicated, it appears that the refusal of the court to compel a party to join in a demurrer to evidence cannot be assigned for error. Young v. Black, 7 Cranch, 565. For this reason, as well as because the conclusions attempted to be established as facts from the circumstantial evidence are not admitted in the record, we cannot pronounce a final judgment in the case.
The judgment is reversed, and a venire de novo awarded.