Burrows v. Robertson , 7 Iowa 100 ( 1858 )

Woodward, J.

It might, perhaps, be admitted that Thompson would be liable upon his promise to the plaintiffs. 2 Stark, on Ev., 345—6, note, (edit, of 1854); Brown on Stat. Frauds, sec. 165, et seq; where it is laid down that when the contract is, in effect, a promise to pay one’s own debt, it is not within the statute. Eut this is on the question, whether one standing, as Thompson does, is bound. Admitting his liability, however, and it does not follow, of course, that Robertson is discharged, Barber v. Backlin, 2 Denio, 49; Blunt v. Boyd, 3 Barb., 209.

There has not fallen under our notice, any case precisely illustrating the position of Robertson; but Parsons on Con., 302, says: “ It is quite certain that the party for whom the promise is made, must be liable to the party to whom it is made ; and it is equally necessary that he continue liable after the making of the promise. . In other words, the’ promise of the party undertaking, must not have the effect, prior to its performance, of discharging the party originally liablethat is, this must be the state of the case, in order to bring it within the reach of the statute at all, and then, whilst the promisor becomes liable, as collateral, the original debtor remains liable as before.

In the contract, as stated by the defendant, we do not see sufficient to make a complete agreement among all the parties. Admitting that there is enough to bind Thompson, and perhaps the plaintiffs, too, yet there is not enough alleged to make the contract complete as to the defendant Robertson, lie docs not agree to credit Thompson the amount,nor to release him; and it appears from the action itself, that the plaintiffs have not delivered up the note, nor is it stated that they agreed to do so. Time does not -permit us to enlarge upon the question. In our opinion, although the plaintiffs might resort to Thompson, in the first instance, so far as regards his promise; yet, until Thompson has paid, the defendant cannot successfully plead the contract.

After this, nothing remained of the answer to reply to. As we construe the answer, it is thus: The defendant admits the execution of the note, but says he does not owe, for the following reasons — and then proceeds to sot forth the following matter, which constitutes the whole substance of the answer, and which lie pleads as the legal reason why he does not owe. The judgment is affirmed.