Combs v. . Harshaw

63 N.C. 198

• Court: Supreme Court of North Carolina
• Decided: January 5, 1869
• Status: Published

Opinion

Settle, J.

(After stating tbe case as above.) Passing by tbe objection that tbe agreement to refer is too vague and. uncertain to found an action upon, we will consider tbe point, made on the trial below.

Does this promise come within tbe provisions of tbe statute of frauds ?

When there is an existing cause of action between two parties, and a third party merely adds bis parol - promise to the-subsisting liability, without tbe original cause of action being-discharged, bis promise falls within tbe statute, and cannot be- enforced. Draughan v. Bunting, 9 Ire. 10, and Stanley, et al. v. Hendricks, 18 Ire. 86.

■ Here tbe plaintiff bad a canse of action against young Har-sbaw, which, it is not pretended was released by the agreement to refer. The father, being in no way responsible, super-added his promise to the liability of his son.

His Honor held, that this being a new promise, and supported by a sufficient consideration, the plaintiff was entitled to recover.

Although a new promise on the part of the father, it was not substituted for the liability of the son, and did not release the son from his accountability to the plaintiff. It is said here, that there was a new consideration for the promise of the defendant. Admit that there was, and it does not help the plaintiff.

In the cases above cited, it is said that “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. ”

Pee Cueiam. Venire de novo.