Wills v. Cutler , 61 N.H. 405 ( 1881 )

While it is impossible to reconcile all the decisions upon that branch of the statute of frauds pertaining to the promise of one person for the debt, default, or miscarriage of another, the decision of this case, so far as it relates to the statute, only requires the application of well settled principles.

1. The practical effect of Reed's promise to the plaintiff and the other workmen was to pay them a bonus for their labor in order to secure it. It was an absolute engagement to pay them the wages due from the old firm, provided they should go to work for the defendants at the same wages they had been receiving from that firm. The plaintiff and his associates assented to the condition, and having performed it the defendants' liability became original and absolute, and therefore not within the operation of the statute. The facts bring the case exactly within the principle stated and approved in Allen v. Thompson, 10 N.H. 32, and Britton v. Angier, 48 N.H. 420, that "where a promise to pay the debt of another is founded upon a new consideration distinct from and independent of the debt, and one which passes between the parties to the new contract, the case is not within the statute of frauds, and no writing is necessary to the validity of the promise."

2. There was a sufficient consideration for the promise. It is of course true that a mere naked promise to pay the existing debt of another without any consideration is void; but it is held in numerous cases that where the leading object of the defendant in agreeing to pay or answer for the third party's default is to benefit himself, the statute does not apply. The important case of Emerson v. Slater, 22 How. 28, affords a good illustration. The plaintiff Emerson had been employed by a railroad company to build its bridges, and the company failing to make payment as agreed, he refused to go on. The defendant was a large stockholder is the road, and had leased to the company a large quantity of railroad iron, and, as security for payment, held an assignment of the earnings of the road until payment was made him in full. The company itself was insolvent, and the road could not, of course, be operated until the bridges were completed. Whereupon the defendant orally promised to pay the plaintiff if he would go on and complete them, which he did. Upon the defendant's refusal to perform his promise, suit was brought, and the court held the promise to be valid, laying down the rule that "whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute." Tested by this rule, the promise of these defendants was valid, because the facts unmistakably show that their object was to subserve their pecuniary and business purposes by retaining the workmen, so that there might be no interruption in operating the foundry. But, in our opinion, it may well be doubted whether the object actuating a promise can be made the test of its legal obligation, and we attach no importance to this consideration. For whatever the object of the defendants may have been, the valuable experience and skilled labor of the workmen in putting into operation and carrying on the suspended foundry, from which the defendants derived a benefit not before enjoyed, and which accrued directly to themselves, were a sufficient consideration for their promise. And apart from this, work and service always afford sufficient consideration for a promise when rendered at the request of the promisor.

Holding the promise valid, it is unnecessary to consider the objection that as against Otterson Co. the plaintiff's debt did not become extinguished by his acceptance of the defendants' proposal, for if the objection is true (see Warren v. Batchelder, 16 N.H. 587), it does not follow that this action will not lie, because there are many cases in which a plaintiff may not have discharged his original debtor, and yet the promise be good without writing; its object and character being, as here, other than that of guaranteeing the debt, though the discharge of the debt may be incident to the performance of the promise. Browne St. Fr. (4th ed.), ss. 194, 207, et seq.

3. The objection that the action cannot be maintained because the promise was not made to the plaintiff individually is not well taken. The promise was to pay distinct sums to distinct payees, thus creating several and not joint interests, for which separate actions only will lie. The fact that most of the workmen were present when the promise of Reed was made, did not make it any less a promise to each of them than it would have been had it been made to each separately, or if all of them had been named specifically.

The objection that the promise was not "for a specific sum, but for an uncertain, unliquidated amount, due to an indefinite number of persons," is equally untenable. That is certain which may be rendered certain, is an elementary maxim of universal application in the construction of contracts. Here the time was definite, and the persons to be paid embraced a certain class only; hence, to ascertain the amount due to each only required the simple process of multiplying the price per day by the number of days' work performed, both of which were capable of being defined and limited.

So, too, is the objection that no demand was made before suit. The declaration contains the general allegation, "yet, though often requested," etc., but whether a specific demand was in fact made does not appear, and is of no consequence. The promise relied on was not, if a third person did not pay a certain sum of money, to pay the same on a certain day, on request, nor was it a promise to one person to pay his debt to another who did not participate in the arrangement, but it was a direct agreement with the plaintiff personally to pay him a certain debt founded solely on a consideration moving from him alone to the promisor. No specific demand can be required in such a case, and a general allegation, like that in the declaration, is sufficient.

In support of the three objections last considered, the defendants have called special attention to the cases of Butterfield v. Hartshorn, 7 N.H. 349, Warren v. Batchelder, 16 N.H. 587, Lang v. Henry, 54 N.H. 57, and Dow v. Clark, 7 Gray 198; but it will be found on examination that they have no application to this case, because in all of them the suits were brought on a promise made to third persons for the plaintiff's benefit, and under an arrangement in which they took no part, and in which no consideration moved from them.

4. The arrangement as to putting the agreement in writing was not an essential part of the agreement itself. The finding of the referee, that the agreement became complete on the acceptance of the defendants' proposition, discloses no error in law.

5. The remaining objection is, that it was incumbent on the plaintiff to show the assent of Reed's firm to his promise. But as it was made in respect of the regular business of the partnership, and in a matter clearly within its scope, the objection requires no consideration.

Judgment for the plaintiff.

SMITH and CLARK, JJ., did not sit: the others concurred.