Walker, J.,
after stating the case: There was error in the charge to the jury. After a careful examination of the evidence, we can find -none which tends to- prove that the acceptance of the order was unconstitutional. The testimony of the witnesses on both sides was to the effect that defendant agreed to pay the order, if they owed Lancaster, or whatever amount they owed
him. As there was no evidence to support the first branch of the instruction, as to the unconditional character of the acceptance, the judge should not have submitted that, as a phase of the case, to the jury.
Worley v. Logging Co.,
157 N. C., 490. The trial judg'e should not charge the jury upon an aspect of the case which is not supported by the evidence.
Stewart v. Carpet Co.,
138 N. C., 60;
Jones v. Insurance Co.,
153 N. C., 388, and authorities therein cited. He is required “to state in a plain and correct manner the evidence, and declare and explain the law arising thereon.” Pell’s Revisal, sec. 535 and notes. If defendants accepted the order upon the condition that they would pay it, if they were indebted- to Lancaster in that amount, or that they would pay any amount owing to him, and it turned out that they did not owe him, there would, of course, be no liability to plaintiff; but if they did owe him, and the order was presented to them, or they were notified of it, and especially if they promised to pay it out of any money due Lancaster, they would be liable to the extent of the indebtedness, not exceeding, though, the amount of the order and accrued interest.
Brem v. Covington,
104 N. C., 589. In that case it was held'that the order, when duly brought to the notice of the defendant, was "in effect an equitable assignment of the amount ordered to be paid, if so much was in the hands of the person upon whom it was drawn.
Plaintiff can recover also upon the acceptance of the order, not treated as an equitable assignment, if the defendant owed Lancaster, as the acceptance would constitute a promise to pay, founded upon a sufficient consideration, viz., the release of Lancaster, and the fact that they owed him, which would also support the promise to pay the amount thereof to the plaintiffs, instead of to Lancaster.
Brem v. Covington, supra; Mason v. Wilson,
84 N. C., 51. The last case decides that the statute of frauds has no application where defendants had property of the debtor in their hands with which to pay the debt. If defendants owed Lancaster, plaintiffs will be entitled to recover, in addition to the principal amount, interest from the date on which the order was presented, if the debt to Lancaster was
then due.
Brem v. Covington, supra.
The jury were further instructed that if defendants “promised to pay it and accepted it, then they are bound, and the plaintiffs would be entitled to recover.” This is erroneous, as there was no evidence to show an absolute promise, but only a conditional one, and besides, it is objectionable in form, as not addressed to any particular issue
(Farrell v. R. R.,
102 N. C., 390;
Baker v. Brem,
103 N. C., 72); but in a case like this one, where the issues are so simple, we would not grant a new trial on that account, as, in view of the other parts of the charge, it did not mislead the jury, but sufficiently directed their thoughts to the particular issue, though very general in form. The charge should be so framed as to bear upon the issues, and not confined to the right of either party to recover, as if the ease-was being tried upon the general issue.
The error first pointed out was of such a nature that it passed into the verdict and vitiated it, as we are unable to say under which instruction the jury answered the issues, and must presume, in such a case, that it was the erroneous one. This is the rule, where two instructions are so blended and applied to a single issue that the good one is inseparable from the bad.
Beam v. Jennings,
96 N. C., 82;
Holmes v. Godwin,
71 N. C., 306;
Rowe v. Lumber Co.,
133 N. C., 433.
There also was evidence in this case that defendants owed Lancaster nothing at the time the order was presented or after-wards. They paid him $250, “in compromise and settlement,” to get rid of him and in this way buy their' peace, as he had threatened them with a lawsuit.
We
need not consider the question whether an ufleonditional parol acceptance would be binding, as founded upon a sufficient consideration and not affected by .the statute of frauds, as there is no evidence now of such a promise.
Free access — add to your briefcase to read the full text and ask questions with AI
Walker, J.,
after stating the case: There was error in the charge to the jury. After a careful examination of the evidence, we can find -none which tends to- prove that the acceptance of the order was unconstitutional. The testimony of the witnesses on both sides was to the effect that defendant agreed to pay the order, if they owed Lancaster, or whatever amount they owed
him. As there was no evidence to support the first branch of the instruction, as to the unconditional character of the acceptance, the judge should not have submitted that, as a phase of the case, to the jury.
Worley v. Logging Co.,
157 N. C., 490. The trial judg'e should not charge the jury upon an aspect of the case which is not supported by the evidence.
Stewart v. Carpet Co.,
138 N. C., 60;
Jones v. Insurance Co.,
153 N. C., 388, and authorities therein cited. He is required “to state in a plain and correct manner the evidence, and declare and explain the law arising thereon.” Pell’s Revisal, sec. 535 and notes. If defendants accepted the order upon the condition that they would pay it, if they were indebted- to Lancaster in that amount, or that they would pay any amount owing to him, and it turned out that they did not owe him, there would, of course, be no liability to plaintiff; but if they did owe him, and the order was presented to them, or they were notified of it, and especially if they promised to pay it out of any money due Lancaster, they would be liable to the extent of the indebtedness, not exceeding, though, the amount of the order and accrued interest.
Brem v. Covington,
104 N. C., 589. In that case it was held'that the order, when duly brought to the notice of the defendant, was "in effect an equitable assignment of the amount ordered to be paid, if so much was in the hands of the person upon whom it was drawn.
Plaintiff can recover also upon the acceptance of the order, not treated as an equitable assignment, if the defendant owed Lancaster, as the acceptance would constitute a promise to pay, founded upon a sufficient consideration, viz., the release of Lancaster, and the fact that they owed him, which would also support the promise to pay the amount thereof to the plaintiffs, instead of to Lancaster.
Brem v. Covington, supra; Mason v. Wilson,
84 N. C., 51. The last case decides that the statute of frauds has no application where defendants had property of the debtor in their hands with which to pay the debt. If defendants owed Lancaster, plaintiffs will be entitled to recover, in addition to the principal amount, interest from the date on which the order was presented, if the debt to Lancaster was
then due.
Brem v. Covington, supra.
The jury were further instructed that if defendants “promised to pay it and accepted it, then they are bound, and the plaintiffs would be entitled to recover.” This is erroneous, as there was no evidence to show an absolute promise, but only a conditional one, and besides, it is objectionable in form, as not addressed to any particular issue
(Farrell v. R. R.,
102 N. C., 390;
Baker v. Brem,
103 N. C., 72); but in a case like this one, where the issues are so simple, we would not grant a new trial on that account, as, in view of the other parts of the charge, it did not mislead the jury, but sufficiently directed their thoughts to the particular issue, though very general in form. The charge should be so framed as to bear upon the issues, and not confined to the right of either party to recover, as if the ease-was being tried upon the general issue.
The error first pointed out was of such a nature that it passed into the verdict and vitiated it, as we are unable to say under which instruction the jury answered the issues, and must presume, in such a case, that it was the erroneous one. This is the rule, where two instructions are so blended and applied to a single issue that the good one is inseparable from the bad.
Beam v. Jennings,
96 N. C., 82;
Holmes v. Godwin,
71 N. C., 306;
Rowe v. Lumber Co.,
133 N. C., 433.
There also was evidence in this case that defendants owed Lancaster nothing at the time the order was presented or after-wards. They paid him $250, “in compromise and settlement,” to get rid of him and in this way buy their' peace, as he had threatened them with a lawsuit.
We
need not consider the question whether an ufleonditional parol acceptance would be binding, as founded upon a sufficient consideration and not affected by .the statute of frauds, as there is no evidence now of such a promise.
We have referred to
Mason v. Wilson,
where it is held that, if the drawee' has money belonging to the drawer, the latter’s promise to pay the debt of the former to a third person, who is his creditor, is an original and independent one, based upon a new consideration and binding upon the promisor, and not being, therefore, within the statute of frauds.
Justice Ashe,
in
Mason v. Wilson,
refers to wbat is said by
Chancellor Kent
in
Leonard v. Vredenburg,
8 Johnson (N. Y.), 28, 39, wbicb is as follows:. “There are, then, three distinct classes of cases on this subject, which require to be discriminated: (1) Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor. Here, as we have already seen, is not, nor need be, any other consideration than that moving between the creditor and original debtor. (2) Oases in which the collateral undertaking is subsequent to the creation of the debt, and .was not the inducement, to it, though' the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attach to this subsequent promise. The cases of
Fish v. Hutchinson
(2 Wils., 94), of
Charter v. Beckett
(7 Term. Rep., 201), and of
Wain v. Warlters,
are samples of this class of cases. (3) A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. The two first classes of cases are within the statute of frauds, but the last is not. 1 Saund., 211, note 2.” He then says: “In construing this statute (our act of 1819), it may be laid down as a general rule 'that a promise to answer for the debt, de’fault, or miscarriage of another, for which that other remains liable, must be in writing to satisfy the statute of frauds;
contra,
when the other does not remain liable.’ 1 Smith L. C., 371. But there are numerous exceptions to the rule.” The learned justice also quotes with approval what is said by
Judge Pearson
in
Stanly v. Hendricks,
35 N. C., 86: “The principle is this: When in consideration of the 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
tbe consideration was not for tbe benefit or ease of tbe original debtor, bnt for a purpose entirely collateral, _ so as to create an
original
and
distinct
cause of action.” Tbe same principle was enforced in
Threadgill v. McLendon,
76 N. C., 24;
Hicks v. Critcher,
61 N. C., 353;
Hall v. Robinson,
30 N. C., 56;
Draughan v. Bunting,
31 N. C., 10, and more recently in
Voorhees v. Porter,
134 N. C., 591, where it was held tbat a creditor may sue directly a’xmrty bolding- a fund wbicb bis debtor bas dedicated to tbe payment of bis obligation, tbe transaction not being witbin tbe statute of frauds, but tbe promise of tbe bolder of- tbe fund or property of tbe .debtor being an original one and not merely super added to tbat of tbe debtor, leaving tbe latter also liable. In tbe still more recent case of
Peele v. Powell,
156 N. C., 553,
Justice Allen
classifies those eases witbin and those cases without the statute with fine discrimination, and it renders further discussion of tbe matter superfluous. For the error in tbe charge, tbe case must be tried again.
New trial.