Click v. M'Afee , 7 Port. 62 ( 1838 )

ORMOND, J.

— Two questions arise in this case —

1st. Is this the case of a promise to pay the debt of another, within the statute of frauds?

2d. Was it the duty of the plaintiff below to have averred and proved the consideration of the promise, to entitle him to a recovery ?

That the promise made in this case, _was the promise to pay the debt of another, cannot be questioned. If it were the purchase by the plaintiff in error, of the defendant in error, of a debt of Tarrant, it is not easily conceived why there should have been any necessity for the introduction of Tarrant’s name into the contract;. nor is the other supposition made by the counsel for the defendant in error, that the creation,of the debt from Tarrant to the defendant in error, and the promise by the plaintiff to pay the debt, were simultaneous acts, more plausible. The language evidently imports a past consideration on the part of Tarrant, which would bring the case within the influence of the statute of frauds.

If the language of the promise were at all doubtful, the averment in the declaration sets the matter at rest; as it is there alleged that “ th'e defendant then and there promised to pay the said sum of money, for the said Tarrant.”

But although the promise is within the statute of frauds, it is well settled, in this State, that under our statute passed in eighteen hundred and eleven, making every writing, which is the foundation of an action, evidence of the debt or duty for which it was given, no consideration need be averred in the declaration. The writing is prima fade evidence of a consideration, until that fact is disputed by the pleadings, or contradicted by proof. In this case, the objection was, on demurrer, that no consideration was averred — and on the trial, that none was proved. Neither objection was valid. This was expressly decided in the case of Philips vs Scoggins, (1 S’t & Por. 28,) and again in the case of Chamberlayne vs Barrington, decided twelve months since — (4 Porter, 515.)

A promise, to be binding, under the statute of frauds, must not only be in writing, but like every other promise, must be sustained by a consideration; nor did the act referred to, design to interfere with this principle. Its only effect is to make the writing evidence of the consideration, until the consideration is put in issue by the pleadings, or contradicted by proof.

There is no error in the record, and the judgment of the court below must be affirmed.

COLLIER, C. J

— The note in this case, not only does not show a want- of consideration, but discloses a sufficient consideration on its face. It contains a promise to pay to the defendant in error, “ six hundred and forty-seven 75-100 dollars, for this amount due him by Richard Tarrant.” True, this is an undertaking to pay the debt of Tarrant, but the language employed clearly indicates that the credit of the plaintiff was substituted for that of Tarrant, and that the demand against the latter, to that amount, was extinguished. This view, apart from what Judge Ormond has stated, (which is entirely satisfactory,) would relieve the case from the influence of the statute of frauds.