Bailey v. Bailey , 56 Vt. 398 ( 1883 )

The opinion of the court was delivered by

Tart, J.

The debt sought to be recovered in this action is one for which Isaac A. Bailey, father of the defendant, was liable as surety. The defendant was not liable upon it originally. In the year 1863 the defendant took a conveyance of the real and personal property of Isaac A. upon condition that he would pay all Isaac A.’s debts that remained due. This debt in question, which was not negotiable, became the property of the plaintiff on the 31st day of May, 1876, and after that date the defendant promised the plaintiff that he would pay it, if his brother Harvey, who was the principal upon the notes evidencing the debt, did not. The defendant contends that this was a promise to answer for the debt of another, and, being in parol, was within the Statute of Frauds.

It has been held in this State that where a debtor places property of any kind in the hands of a third person, and that person promises to pay the debt, such promise is not within the statute. Merrill v. Englesby & Tr., 28 Vt. 150; Wait v. Wait’s Executors, Ib. 350; Smith v. Est. of Rogers, 35 Vt. 140; Fullam v. Adams, 37 Vt. 391. The case in brief is this: Isaac A. Bailey conveyed. bis property to the defendant upon condition that the latter would pay the debts of the former. The claim in question was one of them; and when the plaintiff became the owner of it, the defendant promised the plaintiff to pay it. The conveyance of the property to the defendant constituted a sufficient consideration for the promise; and such conveyance, the receipt of the property by the defendant, and the appropriation of it to his own use, bring this case within the rule above stated, and the promise was valid though not in writing.

The promise made by the defendant, as found by the referee, ■was, that the defendant would pay the debt if Harvey did not. Harvey has not paid it and payment cannot be enforced against' him, and so the promise of the defendant, became absolute, and we see no legal reason why he should not lceep it.

Judgment affirmed.

Powers and Rowell, JJ., did not sit.