Osborne v. Farmers' Loan & Trust Co. , 16 Wis. 35 ( 1862 )

By the Court,

Cole, J.:

It is quite clear to our minds that the appellant seeks to recover in this action, solely upon the strength of the promise made by the respondent to pay the ' debts which the railroad company owed him. We do not understand that he relies on the deed of surrender which appears in the case, or claims that there is anything in it which obliges the respondent to pay these debts. But he sets forth his cause of action to be, in substance, that the railroad company owed him the various sums of money stated in,-the complaint, and that the respondent — who had taken possession of the railroad, under the deed of surrender and mortgage, promised and agreed with him to pay him these sums of money, providing and in consideration that he would procure the passage of a resolution by the directors of the railroad company, recommending and instructing the respondent to pay him; and that, in pursuance of such agreement and promise, and at much labor and expense to himself, he did procure the passage of a resolution by the board of directors’ of the railroad company, recommending and instructing the respondent to pay these claims, whereby it became liable for and bound to pay them. This appears to be a brief statement of the cause of action. On the trial, the appellant offered to prove, by a witness, the promise as alleged in his complaint; but the testimony was objected to and ruled out, on the ground and for the reason that the promise was void, unless it was in writing, with the consideration expressed. The correctness of this ruling is the only matter we have to consider. Was, then, the promise of the respondent to pay the debts which the railroad company owed the appellant, one required to be in writing, with the consideration expressed, in order to be valid and binding? A bare statement of the question would seem to be sufficient. It is undoubtedly a promise by the respondent to pay an existing indebtedness of the railroad company. This is all there is of it. Such a promise, the statute says, shall be void, unless it is in writing, signed by the promissor, with the consideration expressed. Section 2, sub-division 2, chap. 10?, R. S.

It is insisted that the promise is “ original,” founded upon a sufficient new consideration, resulting to the respondent, and is, therefore, not within the statute. This position we consider untenable. It is far from my purpose to go into-a discussion of the question as to what promises are deemed “ original,” and what “ collateral,” under the statute of frauds. Comstock, Ch. J., in Mallory v. Gillett, 21 N. Y., 412, has gone into a discussion of that subject, and shown most clearly that these terms have not always been accurately employed, and that the word “ original ” has been sometimes used to characterize any new promise to pay an antecedent debt of another person. And it seems to me that the promise of the respondent to pay the debts of the railroad company can only be termed “ original ” in this sense. It is simply a promise to answer for the debts of the railroad company, without any consideration moving to the respondent. In Nelson v. Boynton, 3 Met., 396, Chief Justice Shaw says, that the rule to be derived from the decisions is, that cases are not considered as coming within the statute, where the party promising has for his object a benefit which he did not enjoy before, accruing immediately to himself; but where the object of the promise is to obtain the release of the person or the property of the debtor, or other forbearance or benefit to him, it is within the statute. This rule is approved by the court in Mallory v. Gillett, and appears to be sound and rational.

Applying this rule to this case, the appellant must fail. There is nothing to show that the consideration of this promise was beneficial to the respondent. The consideration was merely that the appellant would procure the passage of a resolution by the board of directors of the railroad company, recommending and instructing the respondent to pay these debts. If this promise, founded upon such a consideration, is valid, we are unable to see why, in any case, if a person should promise to pay the debt of another, providing the creditor should procure the debtor’s request to that effect, he would not be liable. We think such a doctrine would be dangerous, and lead to all the mischief the statute was intended to guard against and prevent. The passage of such a resolution by the board of directors might have been a sufficient consideration to sustain a promise to pay the debts of the railroad company, providing the promise and consideration had been in writing, as the statute requires. At all events, conceding that the consideration was sufficient, does not help the appellant’s case. See Hite v. Wells, 17 Ill., 88, for a strictly analogous case; also, Cross v. Richardson, 30 Vermont, 642. There is always some consideration in every collateral promise. But, to bind one for the debt or default of another, there must be a promise on a good consideration, and it must be evidenced in writing. It is not enough that a sufficient legal consideration is proved, if the object of the promise is the payment of the debt -of another, for his account, and not with a view to any benefit to the promisor. Nelson v. Boynton, supra; Emerick v. Sanders, 1 Wis., 77.

The object here is the payment of the debts of the railroad company. The respondent was not benefited by the passage of the resolution by the directors, as we can see. It is claimed that it might be beneficial to the respondent because it would be a recognition by the directors of its right to the possession of the road. But the respondent had already acquired this possession by the deed of surrender. The suggestion that the resolution could possibly benefit the respondent in any manner must be disregarded. It amounts to nothing more than a promise to pay the debt of a third person on condition that the creditor obtains the request of such third person that the promisor pay his debt. It appears to us that this is all there is of the matter. Such a promise, to be binding, should be in writing, by the terms of the statute.

The judgment of the circuit court is affirmed.