Dows v. Swett

120 Mass. 322, 1876 Mass. LEXIS 183

• Court: Massachusetts Supreme Judicial Court
• Decided: May 6, 1876
• Status: Published

Opinion

Gray, C. J.

The defendant was doubtless once liable for the goods sold and delivered to him, and upon the due bill which, upon paying part of the price of the goods, he gave to the plaintiffs for the balance. But upon his procuring and delivering to them the note of Robinson, as the bill of exceptions states, “ they at the same time gave up the said due bill to him in settlement,” md he orally promised to pay Robinson’s note at maturity, if Robinson did not. The claim of the plaintiffs, and the finding of the court, did not proceed upon the defendant’s liability for goods sold, but solely upon this oral promise of his, thereby necessarily assuming that his previous liability had been settled and discharged by the giving and receiving of the note of Robinson. Upon this state of facts, the only direct liability was that of Robinson upon his note, and the oral promise of the defendant to pay that note, if Robinson did not, was a collateral promise to pay Robinson’s debt, and as such within the statute of frauds. Gen. Sts. c. 105, § 1. Nelson v. Boynton, 3 Met. 396. Ames v. Foster, 106 Mass. 400. Brightman v. Hicks, 108 Mass. 246. Gill v. Herrick, 111 Mass. 501. Exceptions sustained.