Martin v. Black's Executors , 21 Ala. 721 ( 1852 )

D AEG AN, C. J.

— The plaintiff in error insists that he was entitled to a recovery on the written promise contained in the letter' of Chappell to Colclough, and also on the verbal promise made by Mrs. Black to Colclough at Montgomery in December, 1847.

In reference to the writlen promise, the case differs widely from what it was when it was before this court at a previous term. Then the bill .of exceptions merely showed that Mrs, Black promised in writing to pay the debt, in consideration of forbearance to sue tbe estate of William W. Black, deceased ; but now tbe written instrument itself is brought before us, which is the letter of Mr. Chappell, written to Mr. Colclough, under the authority of the defendants’ testatrix. But this letter, in connection with the other proof, falls far short of showing a binding contract to pay the debt; for the rule unquestionably is, that a mere offer to do an act, or to enter into a contract, cannot, within itself, create a binding obligation on the party making it. (Before it can have the effect to create an obligation, it must be accepted or assented to by the party to whom it was made; and this acceptance or assent must be made known in a reasonable time to the party making such offer.-} This proposition is so universally true, that it is needless to refer to authorities to' sustain it. Many of them, however, will be found collected in Chitty on Contracts, 7th Am. Ed. by Parker, from page 6 to 16. The letter of Mr. Chappell was never answered, nor does it even appear that its terms were agreed to; if, then, it could be construed as containing terms sufficiently definite to create a contract, (which, I think, is very questionable,) still, it can be considered in no other light than a mere offer, to which no reply was given, and therefore not a contract.

The verbal promise made to Mr. Colclough in December, 1847, was founded on this consideration: Mrs. Black applied to Colclough to have-Harris, who had been appointed administrator of William W. Black’s estate, removed from office, and to have her appointed administratrix de bonis non. He refused to be employed, unless she would agree to pay all the claims against the estate which he held-for collection, amongst which was the note sued on. To this Mrs. Black agreed, and Colclough acted as her attorney in removing Harris from the office of administrator, and in having her appointed; but he charged her for his services, which has been paid. Upon these facts the question arises, whether Mrs. Black is bound by this verbal promise to pay the debts which Colclough held for collection against the estate? We think the law is settled, and on principles incontrovertibly correct, that if the promise to pay the debt of another be reduced to writing, and be founded on a sufficient consideration, whether that consideration be beneficial to the promisor, or a prejudice to the promisee, the promise nevertheless is binding. But if the promise be not reduced to writing, then, before it can be enforced as a valid contract, it must be shown that the consideration was beneficial to the promisor. Brown v. Barnes, 6 Ala. 694; Nelson v. Boynton, 3 Met. 396; Martin v. Black’s Ex’r, 20 Ala. 309. The reason of this distinction is plain; for, to enforce a promise (not i educed to writing) to pay the debt of another, when the consideration is not beneficial to the promisor, would be wholly to disregard the statute of frauds. No promise is binding in law, unless founded on a consideration ; and to hold that a consideration alone would render valid a promise to pay the debt of another, would be to hold that the promise need not be in writing in any case. On the other hand, if the consideration of the promise was beneficial to the promisor, and we should refuse to enforce it because it was not reduced to writing, w'e should allow the promisor to retain the benefit, and yet refuse to comply with his promise. This would be to enable him to commit a fraud. It is on this reasoning the rule is settled, that if the promise is founded on a new consideration, beneficial to the promisor, it is not within the statute of frauds, and may be enforced, although not reduced to writing.

Let us test this verbal promise by this rule. Mrs. Black employed Colclough to act as her attorney, in removing Harris and having letters of administration issued to her; but she paid him for his services. What legal benefit, then, resulted to her from her promise to pay the debts that her son owed, and which were held by Colclough for collection? When this case was before us at a previous term, we said, that we could not see that it was beneficial to the defendants’ testatrix; and there is nothing disclosed by the bill of exceptions as the case is now presented, that enables us to discover any legal benefit resulting to Mrs. Black from the consideration of the promise, that will take it out of the statute of frauds. The verbal promise is therefore within the statute, and consequently void.

Let the judgment be affirmed.

Note. — This opinion was prepared by the late Chief Justice, and was adopted as the opinion of the court, and delivered by Chilton, 0. J. -