Brown v. Adams , 1 Stew. 51 ( 1827 )

JUDGE CRENSHAW

delivered the opinion of the Court.

-The declaration contains the common money counts, on which issue was taken to the jury, and it does not appear that this issue war. e> er disposed of; but by an arrangement between the counsel, the second assignment of error was abandoned. The inquiry at present then is, wheth r the first and second counts ate sufficient? The promise to indemnify the plaintiff against the acts of the sheriff, was clearly a promise to answer for the default or miscarriage of a third person, and by the statute of frauds and perjuries, ought to be in writing.^b But the position contended for against the sufficiency of the declaration is, that it contains no averment that the promise was in writing. The distinction recognized by the authorities is, that where the contract would be good at common law before the passage of the statute, it is not necessary to aver.in the declaration that it was in writing; but where tfle duty or liability is created by statute, and also required to be tn writing, then it must be averred in the declaration that the promise was in writing. In the present case the contract, if supported by a sufficient consideration, was good at common law before the enactment of the statute, and though the statute requires such a contract to be in writing, yet by the above ru!e, this fact need not be averred in the declaration, but would be matter of evidence on the trial.

The nex¿ question is, that supposing the contract to have been written, is it essential to its validity that it should be supported by a sufficient consideration ? The opinion of Chief Baron Skinner, in the case of Rann vs. Hughes, delivered before the House of Lords on a writ of error, and in which he had the concurrence of the twelve judges of England, is high authority for the decision of this question, and whose reasons are so excellent,, that I think they should be adopted without comment. The principle is there settled, that the statute of frauds never intended to make a contra ;t valid, which was not so at common law; that though the contract be in writing, yet it is nudum pactum and void, unless the declaration shews that it was on a good and sufficient consideration. The same rule of construction has been adopted by the Courts of New-York and other American decisions; and in this respect our own statute bears an analogy so strong to the English statute, that I am constrained to give it the same construction. Is then the consideration set forth in the declaration sufficient to support the contract ? In Comyn on Contracts, it is said that if the plaintiff be prejudiced by reason of a promise or undertaking passing .from the defendant to him, this is a sufficient consideration to support the promise, and that it is not material whether the defendant.is to be benefitted or not, if in con~ sequence of his promise, the plaintiff was induced to do an act by which he has been damnified; the promise is valid if reduced to writing. The case at bar comes clearly within these principles. The declaration alleges that the defendant promised the plaintiff, if he would become security to the sheriff, he would answer for any damages he might sustain by reason of such secUrityship, and that confiding in tnis promise, the plaintiff did become security ; by reason of which, he hath.sustained damage to a certain amount. The Court are therefore of opinion that the first and second counts of the declaration are sufiU-cient, and that the judgement of the Circuit Court must be reversed. But because .the action is .purely in damages, the cause must be remanded for further proceedings in the Court below.

b vide comynon c