Putney v. Farnham , 27 Wis. 187 ( 1870 )

Dixon, C; J.

The question as to the right of trial by jury need not be decided, as the judgment must be reversed on the merits, and that question may not arise again. The court below ruled out all other testimony, and held, on the defendant’s own answer or disclosure as garnishee, that his promise to pay the debts due from Corlett to Eallon and Gallagher was within the statute of frauds and void, and consequently that the payments made by him to them after service of the garnishee summons upon him, were unauthorized, and did not discharge him from liability as the garnishee of Corlett. This, we think, was a mistaken view of the contract or promise to pay made by the defendant to Corlett. The defendant purchased of Corlett a span of horses, a wagon and set of harness, and, as part of the contract of purchase, promised Corlett to pay so much of the purchase money, namely, $12.50 to Eallon and $17 to Gallagher, Corlett being indebted to those -parties respectively in those sums. Soon after the purchase, and before the service of the garnishee process upon him, the defendant notified Fallon and Gallagher of his promise to Corlett to pay them such sums, and they each accepted such promise, and, as he testifies, “ consented to take his word for the pay.” He paid them according to promise, but not until after process of garnishment was served upon him. The question is, whether such promise was within the statute of frauds, and we believe it to be well settled that it was not, although it was collateral to Corlett’s own liability or promise to pay the same debts, and may be said incidentally to have guarantied such payment. It was a guaranty in form, but not in substance or effect, within the meaning of the statute of frauds. It was not a mere promise by the defendant to be responsible for the debts of Corlett to those parties, and to pay those debts, but a promise by him to pay his own debt in that particular way. It was a promise founded upon a new' and sufficient consideration moving to the promisor from the debtor at the time the promise was made. Such a promise or agreement is not within the statute of frauds, and no note or memorandum in writing expressing the consideration and subscribed by the party to be charged therewith, is required. Dyer v. Gibson, 16 Wis. 557; Wyman v. Goodrich, 26 Wis. 21; Mallory v. Grillett, 21 N. Y. 412; Cardell v. McNeil, id. 336; Nelson v. Boynton, 3 Met. 396; Dearborn v. Parks, 5 Greenl. 81; Barker v. Bucklin, 2 Denio, 45.

And the principle seems well settled now in cases of simple contracts, where one makes a promise to another for the benefit of a third person, that such third person can maintain an action in his'own name upon the promise, though the consideration does not move from him. Barker v. Bucklin, supra, and cases there cited; McClellan v. Sanford, 26 Wis. 595. After notice, therefore, to them, and their assent, the liability of the defendant to Fallon and Gallagher was absolutely fixed, and they each could have maintained an action against him to compel payment. After such notice and assent, it was no longer in the power of Corlett to forbid such payment, or to withdraw his assent, or to require payment to be made to himself, without the consent of Fallon and Gallagher, even if it may be said to have been competent for him to have done so before they were notified and signified their acceptance of the defendant’s promise. The defendant’s liability being thus fixed, his voluntary payment, after service of process upon him, was not unlawful or unauthorized. Indeed, it was immaterial whether he paid before or after service of process, or whether he had paid at all or not. He was not liable as the garnishee of Corlett. He was not Corlett’s debtor, but the debtor of Fallon and Gallagher, at the time the proceedings were commenced.

And the case of Seaman v. Whitney, 24 Wend. 260, cited and relied on by counsel for the plaintiff, was of a different kind. The question there was, whether, where funds were merely deposited by a debtor with a third person, with directions to pay them over to a creditor in extinguishment of a debt, and there was no agreement, either express or implied, by which the funds became the property of the creditor, so that the debtor did not lose control over them, an action for money had and received would lie by the creditor against the third person with whom the funds had been so deposited. So much as is said, rather obiter than otherwise, towards the close of the opinion, respecting the necessity of obtaining the assent of the party for whose benefit a promise is made to another, either at or before the time the consideration for the promise passes or the promise is made, in order that such promise may he valid or available to the party for whose benefit it is made, is opposed by the weight of authority, and does not meet our approval.

By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.