Alsobrook v. Southerland , 2 Stew. & P. 267 ( 1832 )

Lipscomb, C. J.

This was an action of debt, brought by the Southerlands, the plaintiffs below, against Alsobrook, on his writing under his seal, as follows : “ On or before the first day of March, eighteen hundred and twenty-eight, I promise to pay G. and J. Southerland, or order, one hundred and twenty-four dollars ninety-one cents for value received, on account of my son Kindred — Witness, my hand and seal, this eighteenth day of August, eighteen hundred and twenty-sis.— Signed, Wm Alsobrook (seal.)”

The plaintiffs offered no other testimony than the note on which the action was brought.

The defendant offered and read as testimony, an agreement in writing, signed by the Southerlands, in the following words : “ This is to certify, we have received two notes of William Alsobrook, on account of his son Kindred, for two hundred and forty-nine dollars and eighty-two cents — one payable first of March next, for one half, and the other payable first of March eighteen .hundred and twenty-eight, for the other half. Now, it is understood that said William Al-sobrook agrees to pay for his son Kindred, at the rates of one hundred and fifty dollars per year from the first of March last,-to his creditors, until his just debts are paid, and should the payments above .be more than our proportion, fhen and in that case, we are to receive our proportion, and give proportionate time for the balance. Given under - our hands, this 18th day of August, 1826. Signed, G. and J. Southerland.”

The court charged the jury, that from this testimony, offered by Alsobrook, it appeared that time was given to Kindred, which was a sufficient consideration to support the bond sued, and to bind the defendant. To this charge the defendant excepted, and now assigns it for error.

It is contended, by the plaintiff in error, that the record shows the foundation of the action to be a promise to pay the debt of another, without an adequate consideration. The English statute of frauds, from the time of the case of Wain v. Walters, has been much discussed, both in England and in this country; and the decisions have been far from uniform. It is now, how.ever, thought to be, the well established doctrine, that the. consideration need not be expressed in the written agreement. Ifitisgood in law, such as giving day, or discharging the debt- or, or any thing else deemed good in law, the promise to pay will be binding and valid. We need not, however, discuss the law of the statute of frauds; because, on its construction, there was no controversy at the bar, and an entire concurrence on the part of the court. And, as it was said by the counsel for the plaintiff in error, the only question is, whether the record shows the promise on which the action is founded, is based on a consideration deemed good in law. The record shows clearly that it was a promise or undertaking for the debt of another. Does it also show, that it was on a good consideration ? The charge of the Judge assumes a fact, which, if proven, would constitute a sufficient consideration. We will see whether this assumption is well taken, and supported by the proof. The Judge says, that it was for giving day of payment to Kindred, the original debtor, and that the paper signed by the Southerlands, and offered in evidence by Alsobrook. establishes the fact. In this, I apprehend, the Circuit Judge erred: the only reference to time and indulgence, contained in that piece of written testimony, is an extension of indulgence to Alsobrook, and not to his son. If, however, a fair inference could be drawn from the testimony, that there was a good consideration to support the undertaking, we should not feel authorised to reverse the judgment, because the Judge had arrived at the correct conclusion, by reasoning from assumed or imaginary facts. The record, however, will not sustain the conclusion, that the promise was in consideration of giving day; nor that it was in discharge of the original debtor: nor does it disclose any other good consideration, to take the promise out of the statute. ^ The record in this case would be no bar to an action against Kindred Alsobrook by the Southerlands; there does not appear to be any agreement on their part, to the substitution of his father as their debtor.

It is however, contended, that under our statute, the promise being in writing, imports, of itself a good consideration. Bo it so; and let us then see how far the admission will affect the case. 1 The note declared on as the foundation of the plaintiffs’ action, is prima facie evidence of the plaintiffs’ right of recovery; and in the absence of all other proof it would be conclusive. The maker, however, wishes to impeach trte consideration, and he assumes the affirmative, that it was given without any sufficient consideration. He must then, sustain the ground he has taken ; and in doing so, if he proves that it was given for the debt of another, his defence is complete; unless the plaintiff can show, that though the promise was for the debt of another, it was within the exceptions’ to the statute. The defendant can not be required to prove a negative; that it was not for any of those conside•rations deemed good in law'. The récord shows us that the promise was for the debt of another, ánd at this point the evidence stops.' The prima facie evidence of a good consideration, arising from the promise, being in writing, is rebutted, and the plaintiffs below failed to bring themselves within the exceptions to the statute. A majority of the court are therefore of opinion, that the judgment must b¿ reversed, and the cause remanded.