Friedlin v. Crockin ( 1918 )

Prentis, J.,

delivered the opinion of the court.

This controversy arises out of these circumstances: The plaintiff in error, through her agent, Charles R. Welton, leased certain property in the city of Portsmouth to Nathan Crockin, Incorporated, from July 1, 1912, to December 31, 1914, for $75.00 per month. At the time of the lease another tenant, who was not ready to vacate on July 1, 1912, occupied the property, and by consent was permitted to hold it until September 1, 1912. In the meantime the lessee had determined to give up its business, the stockholders had determined to dissolve the corporation, and the agent of the lessor was notified that the property would not be occupied under the lease.

For the plaintiff it is claimed that Nathan Crockin, one of the defendants, verbally promised the plaintiff’s agent that he and the other two stockholders of the corporation, Haskell and Lewis, would be responsible for the rent until another tenant could be found for the property. It is upon this alleged promise that this notice of motion for judgment is based. The jury found a verdict in' favor of the plaintiff for the amount claimed, which verdict the court set aside as contrary to the law and the evidence, and upon the second trial the plaintiff offered no evidence and there was a verdict and judgment for the defendants.

The plaintiff in error is here claiming that the court erred in setting aside the. first verdict, and that she is entitled to judgment thereon.

The defendants are sued as individuals upon a joint promise, so that the plaintiff can recover against them jointly only in the event that a joint promise is proved. The defendants deny making either a joint or several promise. The evidence of the plaintiff not only fails to sustain such a joint promise, but clearly shows that there was no such joint promise. On the first occasion on which the promise is alleged to have been made by Crockin, one of the defendants, to Welton, agent of the lessor, neither Lewis nor Haskell was present. While there are certain expressions in the testimony of Welton, which, considered alone, might be construed as a promise by Crockin that the three would pay the rent, still his evidence, as a whole, fairly construed, only tends to prove that Crockin promised for himself to pay or to see that one-half of the rent was paid, and that the other half would be paid by the other defendants; but there is no effort to show that he then had any authority to speak for the other defendants, or that there was any consideration therefor. There was another interview in March, 1913, caused by complaints that the rent was not being promptly paid, at which interview Crockin, Haskell and Mrs. Holmes, a sister of the lessor acting as her agent, were present at Welton’s office, and Welton was present part of the time. From the evidence of the plaintiff’s own witnesses, as to this interview, it clearly appears that the former agreement that Crockin was to be responsible for half of the rent, and that Haskell and Lewis were to pay /the other half was confirmed, and Welton, the plaintiff’s | witness, and rental agent, testifies distinctly, positively and ' repeatedly that they did not promise to pay it jointly, but That Crockin and Haskell each severally promised to pay ($37.50 per month. The corporation dissolved in July, 1913, ,and no rent accruing after July 15, 1913, was paid. It appears that the assets of the corporation were applied to the payment of this as well as of its other debts, and that all of the other debts were paid in full except this one.

1. The court upon the first trial properly instructed the jury that unless the promise was made jointly by all of the defendants, the plaintiff could not recover jointly against all, and the jury having disregarded this instruction and found a joint verdict against all of them, the court committed no error in setting it aside.

2. The action cannot be maintained for another reason. The alleged promise or promises by the individual stockholders to pay the debt of the corporation was or were collateral and not original, and under the statute of frauds (Code, section 2840) no action can be brought upon a promise to pay the debt of another unless the promise be in writing signed by the party to be charged thereby or his agent. The plaintiff did not release the corporation, the original debtor, from its obligation, nor did she release or waive any of her legal rights to subject the assets of the corporation to her debt, nor was she asked to do so, and the case is clearly within the letter and reason of the statute. Waggoner v. Gray’s Adm’r, 2 Hen. & M. (12 Va.) 603; Cutler v. Hinton, 6 Rand. (27 Va.) 509; Ware v. Stephenson, 10 Leigh (37 Va.) 161; Noyes v. Humphreys, 11 Gratt. (52 Va.) 636; Engleby v. Harvey, 93 Va. 444, 25 S. E. 225; 20 Cyc. 172; Hurst’s Hardware Co. v. Goodman, 68 W. Va. 462, 69 S. E. 898, 32 L. R. A. (N. S.) 598, Ann. Cas. 1912 B, 218; Fields v. Bullington, (Ga. App.) 92 S. E. 653; 20 Cyc. 172, 186.

In our view the dissenting opinion is based upon a misconception of the facts disclosed by the record.

The court properly exercised its discretion in setting aside the first verdict, and the case having been rightly determined, the judgment will be affirmed.

Affirmed’,