Walker v. Richards , 39 N.H. 259 ( 1859 )

Fowler, J.

The question principally discussed by counsel in this case has been whether the defendants promise to pay for the goods subsequently sold and delivered to Davis by the plaintiff, in accordance with the defendant’s request, if not in writing, comes within the provisions of the second clause of the 9th section of chapter 180 of the Devised Statutes, [Comp. Law's 459] which are, that no action shall be brought to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, unless such promise or agreement, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.

This clause of our statute is but a substantial reenactment of a portion of the fourth section of the original statute of frauds, passed in the twenty-ninth year of the reign of Charles II., which has been the subject of frequent consideration by the courts in England and this country, and the construction of which is now definitively settled.

A distinction was at first taken between a promise to pay for goods sold and delivered to another, made before the delivery of the goods, and a similar promise made after their delivery. The former was held to be an original undertaking, and so not within the statute; but the latter a collateral undertaking, and therefore within the statute. Mawbury v. Cunningham, sittings after Hilary term, 1773, cited in Jones v. Cooper, Cowper 228, and in Matson v. Wharam, 2 D. & E. 81. But this distinction was expressly overruled in Jones v. Cooper and Matson v. Wharam, above cited, and also in Anderson v. Hayman, 1 H. Black. 120, and Birkmyr v. Darnell, 1 Salk. 27, and 2 Ld. Raym. 1085; and the almost uniform rule of construction has since been, that if the person for whose use. the goods are furnished be liable at all, any promise by a third person, -whether made before or after the delivery of the goods, although upon sufficient consideration, to pay the debt, must be in writing. Forth v. Stanton, 1 Wm’s Saunders, 211, a, note.

If it appear that the credit was given to the defendant; that is, if the goods were really sold to him, though delivered to another, the statute is out of the case. But if the sale were made to the person for whose use the goods were delivered, so that he is liable at all, the defendant can only be holden by a promise in writing upon sufficient consideration, and in a special action of assumpsit. Forth v. Stanton, 1 Wm’s Saunders 211, a, note, and authorities there cited.

The general current of all the more recent decisions is, that if the party to whom the goods are delivered, or for whose benefit a service is performed, incurs thereby a debt, so that he is liable in any way for it, then the undertaking of another, in aid of his liability and collateral to it, must be in writing, notwithstanding the collateral undertaking may have been in fact the principal inducement to the delivery of the goods or the performance of the service. In other words, if any credit is given to the party who receives the benefit, the undertaking of the other is collateral and voidable, unless in writing. Holmes v. Knight, 10 N. H. 175, and authorities; Greenleaf v. Burbank, 13 N. H. 454; see, also, notes to Birkmyr v. Darnell, 1 Smith’s Leading Cases (4th Amer. Ed.) 316, and numerous authorities collected on page 325; Tileston v. Nettleton, 6 Pick. 509, and authorities cited in note, page 511, of second edition ; Swan v. Nesmith, 7 Pick. 220.

In Rogers v. Kneeland, 13 Wend. 114, 131, Chancellor Walworth says: “The object of the statute was to reach every case of suretyship, whether the agreement of the surety was collateral to a previous promise or liability on the part of the principal debtor, or only collateral to a promise or agreement made at the same time with the promise of the surety, to indemnify against a future default or liability of such principal debtor. When the whole credit is not given to the person who comes in to answer for another, the promise is collateral; and in all such cases there must be an agreement in writing, containing a sufficient consideration to support it; in other words, it is a case within the statute.”

In Cahill v. Bigelow, 18 Pick. 369, it appeared from the disclosure of the trustee that the principal defendant had kept a boarding-house for the workmen employed in the trustee’s manufactory, and that he became debtor to the principal defendant for their board ; that when the principal defendant began to keep the boarding-house it was verbally agreed between the trustee, principal defendant and several persons named, who subsequently furnished the principal defendant with provisions and other supplies, that the supplies should be delivered and charged to the principal defendant, and that at the end of each quarter the trustee would see that the persons who furnished them were paid therefor; that the supplies were so delivered and charged to the principal defendant, and the trustee paid for them for a considerable length of time, and considered himself bound to continue so to do, inasmuch as those who furnished them would not have done it but for his engagement to see them paid.

In delivering the opinion of the court, Chief Justice Shaw says : “ The court are all of opinion that the undertaking of Hatch, the trustee, to pay for supplies furnished to Mrs. Bigelow, the principal defendant, was collateral and conditional — to pay if she did not — to pay her debt; and so was within the statute of frauds. Had any one of those persons brought an action against Hatch, .and he had chosen to rely on the statute of frauds, it would have been a good defence, there being no note or memorandum in writing. We consider this point well settled by authorities. The test is this: when the promise is made before the credit is given, to decide whether one promising is an original debtor or guarantor: namely, whether credit was given to the person receiving the goods. If it was, then such promisor is a guarantor only, undertaking to pay another’s debt; if no credit was given to the person receiving the goods, then the promisor is himself debtor for goods sold to him, and delivered to another person by his order. His promise is not to pay the debt of another; and a parol promise, being made upon a good consideration, is a good contract at common law, and binds him, and is not within the statute of frauds.”

It seems quite impossible to distinguish the circumstances of the present case, as stated in all the counts of the declaration, from those of Cahill v. Bigelow. Here, as there, the sale was to the party to whom the goods were delivered.; the credit was to that party, and consequently the undertaking of the defendant here, as of the trustee there, was collateral and conditional — to pay, if the party to whom the sale was made and the credit given did not— to pay the debt of such party; and so, upon the whole current of modern authority, clearly within the statute of frauds, and no action can be maintained upon it, unless it were in writing.

But this question does not arise upon the demurrer. The whole effect of that is to deny the sufficiency of the plaintiff’s declaration. If that contain everything necessary to be alleged to enable him to maintain an action, it is good upon demurrer, whether or not he have any evidence by which to sustain it upon trial.

The general rule undoubtedly is, that a plaintiff must set out in his declaration every thing essential to his right of action, since he can recover only secundum allegata et probata, and can legally prove no material fact which the declaration does not allege. Gould’s Pleading, ch. 4, sec. 7. Under this rule it would clearly be necessary that, where a plaintiff* could recover only by proving an agreement in writing, he should, in his declaration, aver such written agreement.

But this distinction was early established in England in relation to statute requisitions ; that where an act of Parliament makes writing necessary to a common law matter where it was not before necessary, in declaring upon that matter it is unnecessary to allege it to have been in writing, although it must be so proved in evidence; but where the matter is created by an act of Parliament, and required to be in writing to be available for sustaining an action, it must be pleaded, with all the circumstances required by the act to render it actionable. Hence a collateral promise, which is required by the statute of frauds to be in. writing, but was good at common law without writing, need not be declared upon as having been in writing. This distinction, although it constitutes an exception to the general rules of pleading, has been too long recognized and is sanctioned by too many precedents and decisions, to be overthrown. Anon., 2 Salk. 519, per Holt, Chief Justice; Duppa v. Mayo, 1 Wm’s Saunders 276, a, n. 1 and 2; 2 Ch. Pl. 86, n. (f.,) Saund. Pl. & Ev. 546.

The demurrer must, therefore, be overruled, with leave to the defendant, according to the provisions of the case, to withdraw it and plead anew without terms.

Demurrer overruled.