Rigby v. Norwood , 34 Ala. 129 ( 1859 )

STONE, J.

The obligation of the defendant, which was read in evidence in this case, was a “ promise to answer for the debt, default or miscarriage of another,” within section 1551 of the Code, which declares such agreement void, “unless the agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing.”. — Brown v. Adams, 1 Stew. 51; Browne on the Statute of Frauds, §§ 158, 159, 160; Fay v. Hall, 25 Ala. 704; Shepherd’s Digest, 640. In the present case, the agreement is in writing, signed by the party to -be charged therewith; but the agreement or memorandum' does not express the consideration, and hence the statute pronounces it void.

[2.] It necessarily results from what we have said, that the plaintiff cannot recover on the written guaranty or endorsement of the defendant, because that guaranty does not express any consideration. It is thus shown that the circuit court did not err, either in the exclusion of evidence, or in the charge to the jury. The evidence offered was irrelevant and immaterial, because the contract, beiug void on its face, could derive no aid from the testimony offered. There was no evidence before the jury of any liability on the part of the defendant, and the court could have so instructed them, without invading auy proviuce of theirs. The testimony was in writing. It consisted of the written contract, which was void on its face. In such case, a charge directly on the evidence, without referring its credibility to the jury, is permissible. Knox v. Fair, 17 Ala. 503.

[3.] The English statute of frauds, 29th Charles H, in relation to contracts to answer for the debt, default, &c., of another, required the “ agreement upon which the action is brought, or some memorandum or note thereof, to be in writing.” In the case of Wain v. Warlters, 5 East, 10, it was ruled, that the word agreement was more comprehensive than the words promise or undertaking; and that it signified “ a mutual coutract on consideration between two or more parties.” It was further held, that the consideration, as well as the promise, should be set down in the writing, and that parol evidence could not be received to supply it. — See, also, Rann v. Hughes, note in 7 T. R. 350; Saunders v. Wakefield, 4 Barn. & Ald. 593, (6 Eng. Com. Law, 531;) Morley v. Boothby, 3 Bing. 107, (11 Eng. Com. Law, 53.)

Our own statute of 1803 (Clay’s Digest, 254, § 1) employs the words “promise to answer for the debt, default or miscarriage of another person,” and does not expressly require the consideration to be expressed in the writing. Under this statute, our predecessors held, that neither the pleadings nor the evidence need affirmatively show that such promise was made or given upon a c'on-sideration : that under our statute of 1811, (Clay’s Dig. 340, § 152,) the promise imported a consideration, until the presumption was rebutted.' — See Thompson v. Hall, 16 Ala. 204, and authorities therein cited.

It will be observed, that the distinction between the English statute and our act of 1803 consists in the substitution by our legislature of the word promise, for agreement employed in theirs. The case of Wain v. Warlters, supra, was made by Lord Ellenborough to hinge on the word agreement. See, also, Violett v. Patton, 5 Cranch, 142, (2 Cond. Rep. Sup. Ct. 214;) and authorities collected in Thompson v. Hall, supra.

The guaranty declared on in this case was executed after the Code went into operation,’January 17,1853; and it is contended for appellant, that inasmuch as the contract which is the foundation of-the suit is in writing, and purports to be executed by the party sought to be charged, it is evidence of the existence of the debt, and that it was made on sufficient consideration. — Code, § 2278. Such is doubtless the general rule bn the subject; and if there be nothing on the fao,e of this contract to take this case’out of the operation of the general rule, then, in pronouncing on the effect of the evidence, we must concede to the appellant the benefit of this rule. This argument cannot.be supported, without a practical abrogation of the statute of frauds. Section 2278 cannot apply to contracts which are covered by section 1551, so as to relieve such contracts from the necessity of expressing the consideration.

[4.] The first count of the complaint in this case sets' forth a good and valid cause of action, unless the provisions of the Code require the consideration to be averred. The guaranty described is as complete as that which in Donley v. Camp, 22 Ala. 659, was pronounced a binding guaranty of the payment of the note at maturity. The authorities are uniform, that contracts within the statute of frauds need not be averred' to be in writing. The question arises on the proof. — See authorities supra; Robinson’s Adm’rs v. Tipton’s Adm’r, 31 Ala. 595; and 1 Chitty’s Pl. 303. The same rule was held to apply to agreements to answer for the debt, default or miscarriage of another, which, under the rule, were required to be in writing, expressing the consideration. Under these principles, we feel bound to declare the first count in the complaint good.

[5.] It may be that the plaintiff has not been injured by the action of the court in sustaining a demurrer to the first count in his complaint. If the evidence he gave on the former trial be the only claim he has against the defendant, he certainly has not been, as he manifestly never can recover on th^t contract. We do not, however, feel authoi’ized to assume that each count was for one and the same cause of action. We have been referred to no case which authorizes us to apply the doctrine of error without injury to sucha case, and we are unwilling, to establish such a precedent. It might, in some cases, work the greatest hardship.

For the error in sustaining the defendant’s demurrer to the first count of the complaint, the judgment of the circuit court is reversed, and the cause remanded.