Ware v. Allen

Statute oe Fbatjds. Promise to debtor to pay a debt for him. A promise made to a debtor to pay a debt which he owes to a third.person is not a promise to answer for the debt of another, and, therefore, not within the statute of frauds.

Appeal from the Circuit Court of Copiah County. Hon. T. J. Wharton, Judge. G. L. Ware owned a certain stock of goods on which he had executed a mortgage in favor of Allen, West & Bush. One J. B. Allen had recovered a judgment in the federal court against G. L. Ware, and'his interest in the goods as mortgagor was subject to the judgment of J. B. Allen. By. an agreement between the various parties interested, the goods were sold to Harris, Dodds & Co. G. L. Ware filed his declaration in this action against Allen, West & Bush in which he set out the above facts, and further “ that in the said sale to Harris, Dodds & Co. it was distinctly understood and agreed between plaintiff and Allen, West & Bush, and as a part of the consideration and arrangement by which said plaintiff let go his interest in said goods to said Harris, Dodds & Co., that said Allen, West & Bush were to assume and pay” the judgment of J. B. Allen against plaintiff, but defendants failed and refused to pay said judgment, and plaintiff has been compelled by execution to pay the amount thereof to said J. B. Allen, and the sum thereof is now due from defendants to plaintiff in this action. The defendants pleaded that the alleged undertaking and promise was not in writing. The plaintiff demurred to this plea, the court overruled the demurrer, and the plaintiff having declined to reply to the plea, judgment was rendered for the defendants. The plaintiff appealed. The demurrer of appellant to defendants’ plea, setting up the statute of frauds, we insist should have been sustained, because the promise of the defendants to pay the judgment against G. L. Ware in the federal court was in consideration of the sale of the goods, wares, and merchandise by appellant and Allen, West & Bush to Harris, Dodds & Co. The promise of Allen, West & Bush is expressly made a part of the consideration for which G. L. Ware, appellant, with Allen, West & Bush, effected the sale of the goods to Harris, Dodds & Co., and the declaration shows this. The sum of the cause of action in the declaration is that for appellants joining in the sale of his interest in the goods, wares, and merchandise with Allen, West & Bush to Harris, Dodds & Co., they, Allen, West & Bush, assumed and promised to pay the judgment against Ware, and appellant having been forced to pay the same, his right of action seems complete against the defendant. Oalhoon & Green, on the same side. The complaint in appellant’s declaration is that, as part of the consideration inducing him to sell .his claim of interest in a stock of goods, appellees agreed with him that they would pay the costs taxed against him in a certain lawsuit, and that they did not, and he had to. Here was a distinct primary promise to pay his debt to another as a consideration for the transfer of his property: To this declaration they plead that their promise was not in writing, and the court below overruled his demurrer to that plea.. If this case does not gain itself for appellant upon its mere statement, no amount of argument can gain it. It will be seen that the declaration is based upon the contract for the sale of the goods by plaintiff and defendants to Harris, Dodds & Co. If it was intended to plead a promise by defendants to the plaintiff it should have been averred distinctly. But conceding, for the sake for argument, that the promise was made to the plaintiff, what is its legal nature and substance? If the suit had been brought by J. B. Allen, to whom it was promised that the money should be paid, it is clear that a writing would be essential to the maintenance of the action. It will be noticed that the party to whom the money was to be paid did not assent to the agreement and the plaintiff’s liability continued. The' contract averred in its nature is, and it has all the elements of, a simple contract of indemnity. It was nothing more nor less than an obligation on the part of appellees to save appellant harmless from the judgment against him. If the contract be treated as one of indemnity it is within the statute of frauds. May v. Williams, 61 Miss. 125.