Henderson Dempsey v. Skinner

143 S.E. 875, 146 S.C. 281, 59 A.L.R. 174, 1928 S.C. LEXIS 123

• Court: Supreme Court of South Carolina
• Decided: July 5, 1928
• Docket: 12478
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Cothran.

The complaint alleged that the defendant was indebted to the plaintiffs on a promissory note signed, not by the defendant, but by one Henry McCally. The defendant was not a party to this note, either as maker, co-maker, indorser or guarantor. At the trial the plaintiff’s attorney, realizing that he could not possibly recover on such a complaint, was allowed to amend it by adding a cause of action for goods sold and delivered. To this complaint the defendant entered a general denial and pleaded the statute of frauds; that the promise to pay on the part of the defendant was a promise to answer for the debt of another, and not in writing.

The defendant, Skinner, owned a farm near Greer, and in 1926, one J. D. McCally was his tenant; he sublet a part of this farm to Henry McCally, the signer of the note. The defendant authorized the plaintiffs to furnish J. L. McCally with fertilizer and signed a note for the same, which he paid. The defendant refused to sign a note for Henry McCally; the fertilizer sued for was charged on the books to Henry McCally.

The only promise on the part of the defendant attempted to be proved by the testimony, was that after the fertilizer had been sold and charged to Henry McCally, the defendant promised to sign the note, but refused to do so.

Upon this state of facts the magistrate found for the plaintiffs, and the County Judge upheld him on appeal.

One of the defendant’s exceptions on appeal is that the alleged promise was founded upon a past consideration and was nudum pactum.

It is elementary that a promise founded upon a past consideration cannot be enforced, unless it be shown to be supported by a new legal consideration, growing out of and connected with the original contract. Garrett v. Stuart, 1 McCord, 514. Mordecai v. Dawkins, Rich., 262; 13 C. J., 359. Gooch v. Gooch, 70 W. Va., 38; 73 S. E., 56; 37 L. R. A. (N. S.), 930. Swearingen v. Insurance Co., 52 S. C., 309; 29 S. E., 722. Ferguson v. Harris, 39 S. C., 323; 17 S. E., 782; 39 Am. St. Rep., 731. Bank v. Mahon, 78 S. C., 408; 59 S. E., 31. McMorris v. Herndon, 2 Bailey, 56; 21 Am. Dec., 515. Here the goods had been sold and the credit extended; the alleged promise was made after the transaction had been completed. There is no claim that there was any new consideration moving from the promisee. This exception should have been sustained by the County Judge.

The other exception is that the magistrate should have found for the defendant on the ground that the alleged promise was a collateral promise to answer for the debt of another not in writing. Certainly, if the credit had already been extended to another person, the promise on the part of the defendant could be nothing else but collateral.

Rice v. Medlin, 116 S. C., 213; 107 S. E., 911, is distinguishable from the case at bar. In that case the account was charged to defendant and there was the relation of landlord and tenant. The landlord made arrangements with plaintiff before the goods were furnished. It was. an original transaction with both parties. In the case of Gaines v. Durham, 124 S. C., 435; 117 S. E., 732, the defendant Masters (landlord) said to plaintiff: “Ret Durham [tenant], have what he wants, and I will see that it is paid.” The promise was made before the goods were sold and delivered; the account was charged upon the books to both. In the case at bar, the goods were sold and delivered to Henry McCally, and then the promise was made, if made at all; the account was not charged to the defendant; the relation of landlord and tenant did not exist.

The judgment of this Court is that the judgment of the County Court be reversed and the complaint dismissed.

Messrs. Justices Blease and Stabler concur.