Opinion
(December Term, 1851.)
1. Where, in consideration of a promise to pay the debt of another, the defendant receives property and realizes the proceeds thereof, the promise is not within the mischief provided against by the statute of frauds, and the plaintiff may recover on the promise or in an action for money had and received.
2. But it is otherwise where the new promise is merely superadded to the original one — not substituted for it.
APPEAL from Ellis J., at Fall Term, 1851, of GUILFORD.
The case is stated in the opinion delivered in this Court.
Gilmer and Miller for plaintiff.
No counsel for defendant.
One Vass was indebted to the plaintiffs $21. Defendant was indebted to Vass $46, and the defendant promised plaintiffs to pay them the debt due by Vass when he should remove from a house of the defendant in which he was then living. Vass afterwards moved out of the house, but defendant did not pay plaintiffs, and thereupon they issued a warrant to recover the amount.
His Honor held that this promise did not come within the provisions of the statute of frauds. In this there is error.
The question is settled by Draughan v. Bunting, 31 N.C. 10. We presume the attention of his Honor was not called to it. It is there decided that if the plaintiff has a cause of action against another, to which the promise sued on is superadded, the statute (87) applies, and to prevent its application the debt of the other must be discharged and the promise sued on be substituted for it. In this case the debt of Vass was not discharged. He continued the debtor of the plaintiffs, and the promise of the debt was superadded, and is a promise to pay the debt of another within the very words of the statute.
It was said by counsel for plaintiff that there was a new consideration for the promise of the defendant. Admit that Vass's removing from the house did amount to a consideration — the same case decides that makes no difference. It required no statute to make void a promise not founded upon a consideration. It is only in cases where there is a consideration to support the promise that the statute of frauds must be called into action.
The counsel cited Thomas v. Williams, 21 E. Ch., 133; Edwards v. Kelley, 6 M. S., 204; Casthing v. Aubit, 2 Eat., 325, for the position that a new consideration takes the promise out of the statute. These cases, so far from conflicting with Draughton v. Bunting, supra, might properly have been relied on as authorities in support of the decision. The principle is this: When, in consideration of a promise to pay the debt of another, the defendant receives property and realizes the proceeds, the promise is not within the mischief provided against, and the plaintiff may recover on the promise or in an action for money had and received. For although the promise is in words to pay the debt of another, and the performance of it discharges that debt, still the consideration was not for the benefit or ease of the original debtor, but for a purpose entirely collateral, so as to create an original and distinct cause of action. For instance, one holding property in trust to (88) sell for certain creditors, finding that another creditor has an execution which overreaches his title and gives a lien by a prior test, says to him, "Permit me to go on and sell, and I will pay your debt."
PER CURIAM. Venire de novo.
Cited: Hicks v. Critcher, 61 N.C. 355; Combs v. Harshaw, 63 N.C. 199; Threadgill v. McLendon, 76 N.C. 27; Mason v. Wilson, 84 N.C. 54; Whitehurst v. Hyman, 90 N.C. 490; Haun v. Burrell, 119 N.C. 547; Voorhees v. Porter, 134 N.C. 605; Peele v. Powell, 156 N.C. 557; Craig v. Stewart, 163 N.C. 535; Rector v. Lyde, 180 N.C. 578.