Jenkins v. Holley.

53 S.E. 237, 140 N.C. 379, 1906 N.C. LEXIS 5

• Court: Supreme Court of North Carolina
• Decided: February 27, 1906
• Status: Published

Opinion

Clark, C. J.,

after stating the case: The provision of the statute of frauds (now Revisal, section 974,) which requires a “special promise to answer the debt, default or miscarriage of another” to be in writing, applies only to invalidate verbal agreements to be surety for the debt, etc., of another for which that other remains liable. It does not forbid an oral contract to assume the debt of another, who is thereupon discharged of all liability to the creditor, the promisor thus becoming sole debtor in bis place and stead. Haun v. Burrell, 119 N. C., 547; Whitehurst v. Hyman, 90 N. C., 489. Tbe point was clearly restated last term by Hoke, J., in Sheppard v. Newton, 139 N. C., 533.

The language here used to plaintiff by Holley — -“I do not look to Wilson for pay, but look to you” — and Holley’s reply —“All right, you look to me; I will pay you on Saturday next” — was very strong, if not indeed conclusive evidence, and is strengthened by Wilson’s testimony. The evidence offered by plaintiff should have been left to the jury, with any evidence the defendant might offer, upon the issue whether Holley became sole debtor, or was merely responsible if Wilson did not pay.

A promise to assume the debt of another, who is thereupon released, need not be in writing. Mason v. Wilson, 84 N. C., 51. The arrangement that Wilson was to work for Holley instead of Jenkins, was consideration to support the promise. The surrender of the paper is not conclusive evidence, of it-' self, for the defendant contends that this was only for the purpose of making a copy. But upon the whole evidence the case should not have been withdrawn from the jury by a non-, suit.

Error.