Booth v. Eighmie ( 1874 )

Gilbert, J.

The court below has found that the defendant promised to redeem the bonds. There is abundant evidence to sustain this finding. Indeed, a contrary conclusion would hardly be warranted by the testimony. Two points are made : 1. That the promise is without consideration. 2. That it is within the statute of frauds.

The substance of the transaction in controversy was this: The plaintiff held the title to certain lands belonging to Mrs. Collins, which in form was absolute, but which was really intended as a security for her indebtedness to him. At the request of the defendant he received from Mrs. Collins, in payment of her said indebtedness, certain bonds made by a railroad corporation, which the defendant had furnished to Mrs. Collins, in consideration of which the defendant made'the promise in question.

Was there a valid consideration for this promise? The plaintiff gave up a security upon real estate, and took a transfer of chattels in lieu of money in payment of Mrs. Collins’indebtedness. This' was done at the request of the defendant. The change might be disadvantageous to the plaintiff, and although without benefit to the defendant, we think the consideration is sufficient to uphold the promise. The case of Willatts v. Kennedy, 8 Bing. 5, is a good illustration of the rule governing this point. In that case the plaintiff who had been appointed by the court of chancery a receiver of the debts and money of a firm, agreed to give time of payment to a person, who owed money to the firm, in consideration of which a third person promised to guarantee the debt. The promise was upheld on the ground that by giving time the receiver had incurred a responsibility which was a sufficient detriment to uphold the defendant’s promise. In this case, moreover, the market value of the bonds when the plaintiff took them was fifteen per cent below par. It must be assumed that the security which the plaintiff relinquished was sufficient, for it was so treated by all the parties to the transaction. Without the benefit of the defendant’s promise, therefore, the plaintiff would be subjected to a loss. In either view of the case, therefore, the consideration was sufficient. 2 Pars, on Contr., §§ 2-9. The promise was not one to answer for the debt' or default of Mrs. Collins. Her indebtedness to the plaintiff had been paid by the transfer of the bonds. That fact is averred in the defendant’s answer, and is a necessary inference from the nature of the transaction. She did not promise the plaintiff to redeem the bonds, or incur any obligation to him on the subject. The statute of frauds, therefore, has no application to the case.

The judgment should be affirmed, with costs.

Judgment affirmed.