Balentine v. Gill

Stacy, C. J.

It appears from a perusal of the pleadings that the plaintiffs are here seeking to hold the defendant Gill on his alleged oral agreement to answer the debt, default or miscarriage of his tenant-optionee and codefendant Warren.’ Gill denies the alleged agreement and pleads the statute of frauds. C. S., 987. In this state of the record, it is difficult to see how the plaintiffs can get along as against the defendant Gill.

Henry v. Hilliard, 155 N. C., 372 , 71 S. E., 439 , 49 L. R. A. (N. S.), 1;

Gulley v. Macy, 84 N. C., 434 ; McIntosh on Procedure, 486.

Recovery is to be had, if allowed at all, on the theory of the complaint, and not otherwise.

Barron v. Cain, 216 N. C., 282 , 4 S. E. (2d), 618 ;

Talley v. Quarries Co., 174 N. C., 445 , 93 S. E., 995 . Here, the plaintiffs have declared on a direct contract with Warren and a collateral contract with Gill. The two are separate and distinct. The one is not within the statute of frauds; the other is.

Dozier v. Wood, 208 N. C., 414 , 181 S. E., 336 ;

Taylor v. Lee, 187 N. C., 393 , 121 S. E., 659 . Neither Warren nor Gill is a party to the other’s agreement. Indeed, Gill’s agreement was not known to Warren. Judgment is demanded on both contracts. The contract with Gill comes within that section of the statute of frauds which provides that no action shall be brought on any special promise to answer the debt, default or miscarriage of another, unless the agreement, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith or some other person thereunto by him lawfully authorized. C. S., 987;

Novelty Co. v. Andrews, 188 N. C., 59 , 123 S. E., 314 .

So far as Gill is concerned, the action is to recover on his alleged collateral agreement, which is required to be in writing to withstand a plea of the statute of frauds or to insure recovery against such plea.

Gennett v. Lyerly, 207 N. C., 201 , 176 S. E., 275 ;

Newbern v. Fisher, 198 N. C., 385 , 151 S. E., 875 ;

Whitehurst v. Padgett, 157 N. C., 424 , 73 S. E., 240 ;

Peele v. Powell, 156 N. C., 553 , 73 S. E., 234 ;

Sheppard v. Newton, 139 N. C., 533 , 52 S. E., 143 ;

Garrett-Williams Co. v. Hamill, 131 N. C., 57 , 42 S. E., 448 .

*499 The plaintiffs insist that their agreement with Gill is not within the' statute of frauds, and for this they rely upon the decisions in Brown v. Benton, 209 N. C., 285 , 183 S. E., 292 ;

Garren v. Youngblood, 207 N. C., 86 , 176 S. E., 252 ;

Whitehurst v. Padgett, supra; Dale v. Lumber Co., 152 N. C., 651 , 68 S. E., 134 ;

Whitehurst v. Hyman, 90 N. C., 487 ;

Mason v. Wilson, 84 N. C., 51 ;

Threadgill v. McLendon, 76 N. C., 24 In each of these cases, however, the declaration was not on a superadded or collateral agreement, as here, but on an original promise.

The declaration in the instant case is more nearly like the example-put by Mr. Clark in his work on Contracts, 67: “If, for instance, two-persons come into a store and one buys and the other, to gain him credit, promises the seller, ‘If he does not pay you, I will,’ this is a collateral undertaking and must be in writing; but if he says, ‘Let him have the-goods and I will pay,’ or ‘I will see you paid,’ and credit is given to him alone, he is himself the buyer, and the undertaking is original.” To-like effect are our own decisions.

Haun v. Burrell, 119 N. C., 544 , 26 S. E., 111 ;

Rowland v. Barnes, 81 N. C., 239 ;

Scott v. Bryan, 73 N. C., 582 .

It all comes to this: Whose debt is it ? How was the credit extended ?' It is alleged in the complaint that the contract was made with Warren and that Gill agreed to pay if Warren defaulted, and to make good his-default. Thus, it is the theory of the complaint that Gill promised to-answer for the debt, default or miscarriage of Warren. To prove such promise some competent writing must be shown. None appears.

It is true there is also allegation that the contract was made with Warren at the instance of Gill and at his request. But it is not alleged,, invocative of the “main purpose doctrine,” that it was made for Gill’s-benefit or upon an extension of credit to him.

Coxe v. Dillard, 197 N. C., 344 , 68 S. E., 134 ;

Ford v. Moore, 175 N. C., 260 , 95 S. E., 485 ;

Handle Co. v. Plumbing Co., 171 N. C., 495 , 88 S. E., 514 ;

Emerson v. Slater, 63 U. S., 28 ;

Davis v. Patricio, 141 U. S., 749 ; 2 Williston on Contracts, sec. 470; 13 N. C. L., 263.

On the other hand, the defendant asserts the main purpose of the-repairs was to enable Warren to operate the gin and ice plant, which he did, albeit it does not appear that he later exercised the option to buy.

It follows, therefore, that the case was erroneously submitted to the-jury as to Gill’s liability on the evidence offered by the plaintiffs. “A contract which the law required to be in writing can be proved only by the writing itself, not as the best, but as the only admissible evidence of its existence.” Morrison v. Baker, 81 N. C., 76 ;

Bonham v. Craig, 80 N. C., 224 ;

Gulley v. Macy, supra; Kluttz v. Allison, 214 N. C., 379 , 199 S. E., 395 .

*500 Had the defendant admitted the agreement as alleged by the plaintiffs and not pleaded the statute of frauds, quite a different situation would have arisen.

Henry v. Hilliard, supra.

The rule is, however, that where the plaintiff declares on a verbal promise, unenforceable under the statute of frauds, and the defendant either denies that he made the promise or sets up another and different contract, or admits the promise and invokes the protection of the statute by special plea or answer, testimony offered to prove the promise is incompetent and should be excluded.

Winders v. Hill, 144 N. C., 614 , 57 S. E., 456 ;

Holler v. Richards, 102 N. C., 545 , 9 S. E., 460 ;

Jordan v. Furnace Co., 126 N. C., 143 , 35 S. E., 247 ;

Browning v. Berry, 107 N. C., 231 , 12 S. E., 195 . “The party to be charged may simply deny the contract alleged, or deny it and set up a different contract, and avail himself of the statute, without pleading it, by objecting to the evidence; or he may admit the contract and plead the statute; and in either case the contract cannot be enforced”— Allen, J., in Henry v. Hilliard, supra.

On the record as presented, the plaintiffs are not entitled to judgment against the defendant Gill.

Reversed.