Craft v. Lott , 87 Miss. 590 ( 1905 )

Truly, J.,

delivered the opinion of the court.

The oral promise made to the appellant was clearly within the statute of frauds, and void. It was at most but a promise to reimburse the surety upon an official bond for any damages which he might incur in the future by reason of his suretyship. That such obligation is within the statute of frauds is well settled in this state, whatever the rule may be elsewhere. May v. Williams, 61 Miss., 125 (48 Am. St. Rep., 80); Bloom v. McGrath, 53 Miss., 249.

The contention of appellant that the rule is different in the state of Alabama, where the official bond was executed, even if sound under the adjudications of that state, cannot avail him in the instant case. His declaration does not aver that the oral promise by which he contends he was originally induced to become a surety was made in the state of Alabama; in fact, every inference reasonably deducible from the averments of the declaration negatives the suggestion.

The letter by which it is endeavored to aid the parol agreement is too vague and indefinite in its expressions to serve as the basis of a contract to indemnify. Regardless of all other considerations, this is fatal to the cause of appellant. McGuire v. Stevens, 42 Miss., 725 (2 Am. St. Rep., 649); Fisher v. Kuhn, 54 Miss., 480; Holmes v. Evans, 48 Miss., 247 (12 Am. St. Rep., 372).

This being true, it is unnecessary to consider whether the-letter is of itself a positive undertaking on the part of the appellee or a mere subsidiary promise to answer for tbe default or miscarriage of another. Under the state of facts set out in the declaration, there may be a moral obligation resting on appellee to reimburse the appellant. But the promise relied on is not such a one as can be enforced by a court of law.

Affirmed.