Gale v. Harp

43 S.W. 144, 64 Ark. 462

• Court: Supreme Court of Arkansas
• Decided: November 27, 1897
• Status: Published

Opinion

Hughes, J.

It is the judgment of the court that the circuit court erred in sustaining the demurrer to the answer of the appellant. The answer pleaded failure of consideration for which the note sued on was executed. The consideration which moved the appellant to execute his note to the appellee was that the appellee promised and agreed with the appellant that Cornell should and would in all things conform to and execute the condition of his contract with the appellee. This Harp wholly failed, according to the answer, to do. The appellant received no consideration whatever from Harp, the appellee, for the execution of the note. The note was executed to appellee for a debt which Cornell owed appellee. The complaint alleges that Cornell was insolvent. If the appellee can make the appellant pay this note, he will collect a demand from his insolvent debtor, and at the same time avoid the performance of his contract and agreement made with the appellee, which was the consideration that induced the appellee to execute the note to him, according to the allegations of the answer, which upon the demurrer are taken as true.

The promise or agreement of Harp, the appellee, made to and with Gale, the appellant, was not within the statute of frauds, though it may not have been in writing. It was not a collateral undertaking, according to the decision in Chapline v. Atkinson, 45 Ark. 67, which is to the effect that “a parol promise to pay the debt of another is not within the statute of frauds when it arises from some new and original consideration of benefit or harm, moving between the newly contracting parties.” Leonard v. Vredenburgh, 8 Johns. 29; Kurtz v. Adams, 12 Ark. 174; Hughes v. Lawson, 31 Ark. 613.

In Lemmon v. Box, 20 Texas, 329, it is held that “when ever the main purpose and object of the promisor is, not to insure for another, but to subserve some purpose of his own, his promise is not within the statute of frauds, although it may in form be a promise to pay the debt of another.” 1 Brandt, Suretyship and Guaranty, § 70.

The answer does not state whether the promise and agreement by Harp, the appellant, was in writing or not. This was not necessary, although, if it were a contract required by the statute of frauds to be in writing, it would be necessary to prove that it was in writing. 1 Brandt, Suretyship and Guaranty, § 90. The general rule at common law is that a contract not described as made by writing obligatory or instrument under seal will be presumed to have been by parol. But the presumption does not extend to the effect that it was verbal.” Hurlburt v. W. & W. Manufacturing Co., 38 Ark. 598.

The contract of the appellant, alleged to have been made with appellee, is not alleged in the answer to be in parol, and, if it were such as is required by the statute of frauds to be in writing, the presumption is that it is so. McDermott v. Cable, 23 Ark. 20. The judgment of the circuit court is reversed, with directions to overrule the demurrer, and the cause is remanded.