Gilmore v. Skookum Box Factory

The opinion of the court was delivered by

Fullerton, J.

The appellant, who was plaintiff below, brought this action against the defendant and respondent to recover upon a promissory note. The complaint alleged that the defendant, the Skookum Box Eactory, made and delivered to the partnership of Howard & Butler its certain promissory note for the sum of $500; that before the maturity of said note, the said partnership, for value, indorsed and delivered the note to appellant; that after the note became due, the defendant, the Skookum Box Factory, sold and delivered certain of its personal property to the respondent, the Skookum Box & Lumber Company, and, as part of the purchase price of said personal property, the respondent “verbally and orally promised the said Skookum Box Factory and agreed with it to pay the note sued upon herein; and that said agreement to pay said note was not in writing, but was part of the consideration of the sale and delivery of said property as aforesaid;” that, in pursuance of said agreement, the Skookum Box & Lumber Company made a partial payment upon said note, to-wit, $20, but refuses to make any further payments thereon, and said note is now due and unpaid. Judgment is demanded against both the defendant and respondent for the balance due upon the note. The respondent demurred to the complaint on the grounds that no cause of action is stated against it, that two causes of action have been improperly united, and that there is a defect of parties defendant. The court below- sustained the demurrer, and, the appellant electing to stand upon his complaint, judgment of dismissal and for costs in favor of the respondent was entered. From that judgment this appeal is taken. The record does not disclose upon which of the grounds stated the court below sustained the demurrer, but it is urged here by the respondent that the promise alleged cannot be enforced, because it is within the statute requiring every special promise to answer for the debt, default, or misdoings of another to be in writing and signed by the party to be charged therewith (Bal. Code, § 4576, subd. 2; 1 Hill’s Code, § 2432) ; and the industrious counsel have collected'many cases holding for and against the proposition.

Perhaps few questions have occasioned more controversy, or given rise to more nice and shadowy distinctions, than those arising out of this branch of the statute of frauds. The cases ou the subject are iu hopeless conflict, and every attempt heretofore made to classify them, or to draw from them a rule that might be a guide to future decisions, seems rather to have furnished new grounds for controversy than to put the question at rest. The classification made by Kent, O. J., in Leonard v. Vredenburgh, 8 Johns. 29 (5 Am. Dec. 317), is justly celebrated; but the authority of his great name was not sufficient to prevent, even in the state where the decision was promulgated, inharmonious and conflicting decisions. Poland, C. J., in Fullam v. Adams, 37 Vt. 391, a case decided in 1864, said:

“The question, whether the defendant’s promise was valid without writing, opens the door to an examination to an almost endless extent of judicial discussion and determination, both in England and this country, and we can hardly hope to do more than to add another decision to the long line, which may serve to perplex future explorers into the true extent and meaning of this section of this ancient statute.”

In the more than a third of a century that has elapsed since that decision was rendered, the difficulties then felt and expressed by the learned chief justice have grown no less; and today it would seem there were no classes of oral promises, based upon a consideration the execution of which will extinguish the debt of another, which a litigant may not contend to be either within or without the statute, as may suit his interests, and be able to back his contention by a formidable array of authorities. But these observations are made, not so much for the purpose of showing the inutility of attempting to distinguish the cases cited by counsel in this case, as to emphasize the importance of our adhering to our own decisions so far as we have concluded the question presented, and thus, at least, preserve uniformity in the law within our own jurisdiction.

Unless the distinction suggested by the learned counsel for the respondent exists between the case at bar and our former adjudications, we have held that promises of the character, and founded upon the consideration, of the one set out in the complaint, are not within the statute of frauds. Don Yook v. Washington Mill Co., 16 Wash. 459 (47 Pac. 964); McKenzie v. Puget Sound National Bank, 9 Wash. 442 (37 Pac. 668, 43 Am. St. Rep. 844); Ordway v. Downey, 18 Wash. 412 (51 Pac. 1047, 63 Am. St. Rep. 892); Silsby v. Frost, 3 Wash. T. 388 (17 Pac. 887).

The distinction suggested is, that in the present case it clearly appears that the old debt was not discharged by the new promise, while in each of the cited cases, although it does not affirmatively appear, the inference is that the old debt was discharged by the new promise. Conceding that there is this difference between the eases, we do not think it ought to be held to affect the liability. The rule, as we have announced it, is not founded upon the principle of novation; it has for its basis a new consideration, moving from the promisor to the promisee, creating a liability on the part of the promisor to pay the beneficiary of the promise in any event, and irrespective of any debt due from the promisee to such beneficiary. While the debt of the promisee to the beneficiary may be the inducement which leads to the agreement between the promisor and the promisee that the obligation due from the one to the other shall be discharged by the payment to the beneficiary, such debt forms no part of the consideration for the promise. The promisor but agrees to pay his own debt, and he ought not to be held to be relieved from it simply because by so doing he incidentally extinguishes the debt of another. Such seems to be the conclusion of the better considered cases. See Leonard v. Vredenburgh, supra; Lee v. Newman, 55 Miss. 365; Muller v. Riviere, 59 Tex. 640 (46 Am. Rep. 291); White v. Rintoul, 108 N. Y. 222 (15 N. E. 318).

Tlie next objection is that two causes of action have been improperly united. It is insisted that tlie complaint states one cause of action against tbe defendant, based upon tbe note, and another and different cause of action against tbe respondent, based upon an oral promise, made long subsequent to the date of tbe note, to pay tbe debt; that these promises are separate and distinct and constitute different contracts, tbe former affecting tbe defendant only, and tbe latter only tbe respondent. Tbe complaint alleges that tbe respondent “verbally and orally” promised and agreed to pay tbe note sued upon. Such a promise, when obligatory, binds tbe promisor upon tbe instrument which be agrees to pay to tbe same extent that it would bad tbe promise been reduced to writing and indorsed upon tbe instrument itself. It is true tbe promise is separate and distinct from tbe promise of tbe maker of tbe note and constitutes a new contract; but it is not different in this respect from that of a subsequent indorser or guarantor of a note. By tbe promise tbe respondent became separately liable upon tbe note; and, without considering what would be tbe rule, independent of tbe statute, we think § 4836, Bab Code (2 Hill’s Code, § 146), determines tbe question:

“Persons severally liable upon tbe same obligation or instrument, including tbe parties to bills of exchange and promissory notes, may all, or any of them, be included in tbe same action, at tbe option of tbe plaintiff.”

See, also, Main v. Johnson, 7 Wash. 321 (35 Pac. 67).

This view renders it unnecessary to discuss tbe question of defect of parties. Tbe judgment of tbe court below is reversed, and tbe cause remanded with instructions to overrule tbe demurrer.

Gobdoet, O. J. and Duetbab and Reavis, JJ., concur.