Spear v. Farmers' & Mechanics' Bank , 156 Ill. 555 ( 1895 )

Mr. Justice Phillips

delivered the opinion of the court:

The principal question presented for consideration is, whether the alleged agreement between Spear and the bank, as alleged in the bill, is within that provision of the Statute of Frauds and Perjuries, “that no action shall be brought * whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person,” unless the promise be in writing and signed by the person to be charged. The determination of this question is dependent on whether the agreement is an original and independent one, or whether collateral to the agreement of another person, whereby the promise is to answer for the debt or default of that other. In the first case it is not within the statute, in the second it is. Eddy v. Roberts, 17 Ill. 505 ; Resseter v. Waterman, 151 id. 169.

The question whether an agreement is an original and independent one is often attendant with much difficulty in .its determination. In this case, Thompson & McLean were primarily liable and the principal debtors, and if the agreement was made as claimed, their liability was in no manner changed thereby. By their discharge of their indebtedness neither party to the agreement would have had to pay any sum to the other, even if the agreement had been in writing and a sufficient consideration for the promise of each to the other. The promise, if any was made by the bank, was a collateral promise. There was no change in the original indebtedness, the original debtors remaining liable to the original creditors precisely the same as when the indebtedness was originally contracted. Spear had no lien of any kind and gave up and yielded no right he had against the debtors, but, as he says, he orally undertook to share with the bank its loss, if any, on the $2000 note, and the bank, as Spear says, undertook orally to share with Spear any loss he might have by reason of his being security for debtors,— that is, the promise of each was a collateral undertaking to be answerable for the debt of Thompson & McLean, and Johnson, Thompson & McLean, if Thompson & McLean should make default in payment. Such a contract is within the statute.

It is urged that the promise of the bank president was founded upon a new and independent consideration moving from appellee to appellant by the agreement that each should share the loss jointly sustained, and each should delay action until a certain fixed time, and then to take action only upon consultation with the other, and that this promise was for the mutual advantage of the contracting parties. The promise to share the loss is the material thing promised, and that promise was collateral to the debt of Thompson & McLean to each of the parties, and if it be admitted that the consideration of the promise of one" to the other is sufficient as a consideration, still the requirement of the statute that the agreement shall be in writing is not complied with, and the promise would still be void. Eddy v. Roberts, supra.

From a consideration of the record we must affirm the judgment of the Appellate Court. "

Judgment affirmed.