Baker, Wilcox & Co. v. Herndon , 17 Ga. 568 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] This agreement is within the 4th section of the Statute of Frauds, according to the construction which has been usually given to that Statute. -If that construction controls this contract, this instrument is void. But should it govern it ?

The language of the Statute is,, that “ No action shall be brought” &c. “ whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person, &c. unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith,” &c. Now the construction to which we are referring, has been based upon the signification of the word “ agreement”. It has been held that an agreement is a contract; that the consideration is an integral part of every contract, and should not lie in averment or parol.

This view of the subject is not without its difficulties. Why should the word agreement, in this connection, receive so very strict a construction ?

In the view of the matter which this construction involves, every contract of this sort should import, and comprehend a perfect mutuality of obligation; otherwise, the > whole agreement is not to be considered in writing. In such case, both parties (as is somewhere suggested) should sign the instrument; otherwise, the full consideration for the signing by the party charged, does not appear in the writing. This is carrying the doctrine to an extent greater than it was ever carried before the case of Wain vs. Walters, (5 East. 10); in which the word agreement received the construction of which we have been speaking, to an extent, indeed, which was not recognised when the laws of England were first adopted in our State.

The case of Wain vs. Walters was decided in the year 1804. .The case of Egerton vs. Matthews, (6 East. 30,) followed soon afterwards. And on these two cases this doctrine chiefly rests for support. It may be well doubted, therefore, whether or mot this construction has been ever settled and sanctioned by proper authority, as the law of Georgia.

Thus looking at the matter, we regard the Act of January 19th, 1852, as settling the question., That Act declares: “That from and-aftemJh&-p.aasag.mo£.this--Act. that part of the 4th section of the Statute of Erauds, so far as the same relates to a party defendant being chargeable upon any special promise to answer for the debt, default or miscarriages of a third person, &c. be so construed as to make any party defendant liable and chargeable upon any special promise to answer for the debt,, default, or miscarriages of a third person: Provided, the same be reduced to writing, and ^that the express agreement, in writing, to answer for the debt, default, or miscarriages of a third person be sufficient to sustain an action on the same, although no consideration may be expressed in the written agreement to do the same.” These terms, may be consid- ered as a legislative declaration, of the sense in which this section of the Statute of Erauds had been adopted and made the law of our State.

In this point of view it is not objectionable, as being re-tro-active in its effect.

Nor can this effect of the Act be considered as unconstitutional in any point of view. It cannot be said to be ex post facto in its character, for the reason that it is not a penal Statute, as well as for the reason which shows it not to be re-troactive. It cannot properly be said to impair the obligation of a contract, because it makes that a contract which, by a different construction, would have been none. Nor does it deprive any one of a vested right, in the constitutional sense of the term.

If not in one of these ways unconstitutional, it cannot be denied but that the Legislature had the undoubted right to pass this Act, declaring the sense in which a Statute of the British Parliament had been adopted and made the law of Georgia.

We may observe, in passing, though it is not' necessary to the view of this case, 'which we present, that re-trospective Acts, the legality of which no one disputes, are being continur ally passed by the Legislature of our State; as we have had occasion to mention in the case of Boston & Gunby vs. Cumming, (16 Ga. R. 102,) which see for the many instances there cited. In addition to which, see the Act of December 17th, 1825, making valid all bonds thei’etofore given in this State by administrators or guardians, payable to the Court of Ordinary, Members of the Inferior Court, Judges of the Inferior Court, &c.

For the reasons given therefore, we are of the opinion that the Act of 1852 is applicable to the agreement in question, and must control this case.

Judgment reversed,