Haun v. . Burrell

26 S.E. 111, 119 N.C. 544

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

Clark, J. :

Section 10 of the Statute of Frauds, now Code, Sec. 1552, provides that, no one shall be liable upon a promise “ to answer the debt, default or' miscarriage of another, unless the agreement upon which such action shall be broughc, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person thereunto by him lawfully authorized.” When the promise is denied the Statute of Frauds can be relied on without being pleaded (Morrison v. Baker, 81 N. C., 76, Browning v. Barry, 107 N. C., 231) but in fact it is pleaded by the defendant and is a complete piotection in this case. Scott v. Bryan, 73 N. C., 582.

It is true that if the promise is based upon a new and original consideration of benefit or harm moving between the creditor and the party promising to pay the debt, this is not “ a promise to answer the debt or default of another, ” and need not be in writing, Whitehurst v. Hyman, 90 N. C., 487; Cooper v. Chambers, 15 N. C., 261 ; Ashford v. Robinson, 30 N. C., 114 ; Shaver v. Adams, 32 N. C., 13. It is true also that the consideration of the new promise may be shown by parol. Nichols v. Bell, 46 N. C. 32.

But where the new parol contract is merely superadcled to the original cause of action which remains in force and is not substituted for it, it is a promise to pay the debt of another and is void. Draughan v. Bunting, 31 N. C., 10 ; Stanly v. Hendricks, 35 N. C., 86 ; Britton v. Thrailkill, 50 N. C., 329. And this is true though there is a consideration for the new promise, (Combs v. Harshaw, 63 N. C., 198 ; Rogers v. Rogers, 51 N. C., 300.) it being well said and repeated in more than one case, “ It required no statute to make void a promise not founded on a consideration. Tt is only in cases where there is a considera tion to support the promise that the Statute of Frauds must be called into action.” In the present case the evidence shows no consideration but merely a conditional promise that “ if he (the defendant) bought the land, he would pay the note (of J. R. Burrell) for the horse, and he did (after-wards) buy the land.” The plaintiff proved the note, and that nothing had been paid on it, and to enable him to recover (if he relies on the new promise as being made to himself) he must have shown in addition that it was no longer in force against J. R. Burrell, the promise of the defendant having been substituted for it, and that there was a consideration therefor. Upon the evidence the promise was doubly invalid, being nudum pactum, and barred by the Statute of Frauds. If the plaintiff relies on the new promise as being made to J. R. Burrell, the interesting question raised by his learned counsel (and which has never been decided in this State) whether a stranger to a contract made for his benefit can maintain an action on it (3 Am. & Eng. Enc., 863) does not arise in this case, for there is no evidence of the terms of the contract for the purchase of the land, between the defendant and J. R. Burrell, nor that as a part thereof the defendant was to pay J. R. Bur-rell’s note to plaintiff. The conditional promise was before such purchase was made.

No error.