Twohy Mercantile Co. v. Ryan Drug Co. ( 1896 )

Marshall, J.

Sec. 2307, R. S., provides that every agreement to answer for the debt, default or miscarriage of another person shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party charged therewith. It hardly needs discussion to show that the agreement sued on comes within this statute. The allegations of the complaint are to the effect that defendant, for a valuable consideration, in writing, guaranteed the payment of respondent’s claim against Lundale. "We understand counsel claims that it is not essential to such a contract of guaranty that the consideration to support it be expressed in writing, and that reliance is placed on Dyer v. Gibson, 16 Wis. 557. It was there decided that a promise for a new and sufficient consideration, moving from the creditor ito the promisor, and beneficial to the latter, is not within the statute of frauds; that such a promise in writing, though not expressing a consideration, if there is a consideration to support it in fact, is not void, and that the existence of such consideration may be shown by evidence «aliunde • but this is not such a case. There is no evidence in the record to show that any consideration moved from respondent to appellant, and'beneficial to the latter. If the forbearance agreed upon referred to the commencement of proceedings involving the validity of appellant’s mortgage, there is no evidence to show it — none whatever. So far as the evidence goes, it was an agreement merely to give Lundale further time to pay his indebtedness. That, of itself, constituted no consideration moving to or beneficial to the appellant.

It follows from the foregoing that the agreement sued on was within the statute, because there was no new consideration moving from the promisee to the promisor, and beneficial to the latter; and that it is void under such statute, because not in writing, expressing the consideration, and subscribed by the party to be charged therewith; hence that appellant’s motion for judgment on the verdict and the undisputed facts should have been granted.

By the Court.— The judgment of the superior court is reversed, and the cause remanded with directions to render judgment for the defendant.