Karr v. Porter

9 Del. 297

• Court: Superior Court of Delaware
• Decided: July 5, 1871
• Status: Published

Opinion

The Court.

This is not such an agreement to pay the debt of another as is within the meaning of our statute of frauds, and the motion to enter a nonsuit is overruled oh both grounds.

A witness was then called for the defendant who proved an account stated between the defendant and Forest on the 16th day of Hovember 1869, by which a balance óf five thousand dollars appeared to be due from Forest to the defendant at that time.

Bates,

asked the court to charge the jury that if they were satisfied from all the evidence in the case that at the time when the alleged agreement or promise was made hy the defendant to pay the debt in question of Forest to the plaintiff, the defendant was not indebted in any amount to Forest, then the alleged agreement was within the statute, and as there had been no written proof of it, the action could not be maintained, and their verdict should be for the defendant.

Bird,

controverted the proposition and asked for a contrary instruction in case the jury should be satisfied that there was such a verbal agreement merely between all three of the parties concerned, and also that there were at that time mutual, open and unsettled accounts existing between Forest and the defendant, as well as between Forest and the plaintiff.

The Court,

Gilpin, C. J.,

charged the jury. When several persons ar.e mutually indebted to each other, theymay by agreement among themselves, vary their respective liabilities and substitute one creditor in the place of another. As if, for example, A is indebted to B, and B is indebted to 0, and by the consent of all of them it is arranged that A shall pay C the amount of the debt he owes B, and that B shall be released from any further liability to C, the latter will be entitled to recover the amount from A. And such an agreement need not be in writing, because it would not be such an agreement to pay the debt of another as is contemplated and provided for in our statute of frauds. For in the case supposed the original debts of A and B would be extinguished by such arrangement and agreement between all of the parties interested, and their extinguishment would constitute a sufficient consideration for the promise of A to pay the amount of the debt of B, to 0, for without the extinguishment of both of the intermediate debts through the medium of such a compact between all the parties, the promise of A to pay 0 in such a case would be but nudum pactum. If, however, the jury should he satisfied from all the evidence in this case, that there was no indebtedness on the part of the defendant to Samuel Forest in fact existing at the time when the alleged agreement in question was entered into, then the agreement of the defendant to pay to the plaintiff the amount of his account against Forest, would have been an agreement to pay the debt of another to him within the meaning of the statute of frauds, and as there had been no proof that it was in writing in any form, the plaintiff would not be entitled to recover, and their verdict should be for the defendant. But if, on the contrary, they should be satisfied from all the evidence that there was such a verbal agreement merely entered into between the three, the plaintiff, the defendant and Forest, as had been detailed to them in the evidence, and also that the defendant was at that time, in fact, indebted to Forest in an amount equal to the amount of the plaintiff’s account in question against Forest, then it would not be within the meaning of the statute, and their verdict should be in favor of the plaintiff for the amount of it, with interest from the time of that agreement.

The defendant had a verdict.