Mason v. Hall , 30 Ala. 599 ( 1857 )

WALKER, J.

There are three questions in this case: 1st, whether a promise by one to pay the debt of another, made upon a new and valuable consideration beneficial to the promisor, is within the statute of frauds ; 2d, whether a suit can be maintained upon such a promise by him for whose benefit it was made; 3d, whether, if suit can be maintained upon such a promise, the declaration may be upon the promise made to the plaintiff’s debtor, describing it as if it had been made to himself.

The first of those three questions is clearly settled in the negative by the previous decisions of this court. — McKenzie v. Jackson, 4 Ala. 230; Brown v. Barnes, 6 Ala. 694; Martin v. Black, 21 Ala. 721; Hollingsworth v. Martin, 28 Ala. 591; Cameron v. Clark & Smith, 11 Ala. 259.

Upon the second question there is some conflict of authority; but the weight of authority, both in England and Amcric'a, is decidedly in favor of the proposition, that where a parol promise is made to one, for the benefit of another, an action may be maintained upon it by him for whose benefit it was made. Such, upon the authorities, and upon the reason, convenience and justice of the rule, we think is the law. It is no obj ection to the maintenance of the suit by him for whose benefit the promise is made, that an action might also be brought by him to whom the promise was made. We deem it only necessary to cite the authorities in support of the foregoing proposition. Bell v. Chaplain, Hardres’ R. 321; Arnold v. Lyman, 17 Mass. 400; 1 Comyn’s Digest, 303; 1 Chitty on Pleading, 5; Barker v. Bucklin, 2 Denio, 45; Master, Wardens & Commonalty of Feltmakers v. Davis, 1 Bos. & Pul. 98; 4 Am. Jurist, No. XLIII, October, 1839, pages 16 to 20; Hitchcock v. Lukens, 8 Porter, 333; Hall v. Marston, 17 Mass. 575; Carey v. Evans, 29 Ala. 99; Huckabee v. May, 14 Ala. 263; Hoyt, Ford & Robinson v. Murphy, 18 Ala. 316.

Upon the third question we are constrained to decide against the appellant. Where a promise is made by one person, to pay the debt of another, it is necessary to declare specially, unless the case be one in which the action for money bad and received can be maintained. — Mason v. Munger, 5 Hill, 613; Beers v. Culver, 1 Hill, 589; Quin v. Hanford, 1 Hill, 82; Huckabee v. May, 14 Ala. 263. Tbe complaint is upon a hiring by the plaintiff to the defendant. The cause of action is a promise, in consideration of a hiring by a third person, to pay a debt of such third person to the plaintiff. There was no hiring by the plaintiff’ to the defendant. There is a fatal variance between the complaint and proof. For this reason we cannot avoid holding, that the charge of the court below is frée from error, though it is manifest from the facts before ns that the plaintiff has a just and legal cause of action against the defendant.

The judgment of the court below is affirmed.