M'Coskey v. Deming

3 Blackf. 145, 1832 Ind. LEXIS 50

• Court: Indiana Supreme Court
• Decided: December 11, 1832
• Status: Published

Opinion

Blackford, J.

This was an action of assumpsit by Deming against JWCos/cey and Lane, Plea, the general issue. Verdict and judgment for the plaintiff below.

The cause of action was as follows: — On the 18th of April, 1827, Robert Neil, by his writing obligatory, for value received promised to pay Isaac Lambert or bearer 540 dollars, on or before the 15th of November following. Deming, the plaintiff below, became possessed by delivery of this writing obligatory, before it was due. On the 15th of May, 1827, the defendants, M'Coskey and Lane, by their endorsement on the writing obligatory, acknowledged themselves responsible for the face of the obligation, if not collected from Neil. On the trial of the cause the.plaintiff offered the acknowledgment, with the obligation on which it was endorsed, in evidence. The testimony was objected to, and the objection overruled. The admission of this evidence is the only error assigned.

The decision of the Circuit Court, complained of by the plaintiffs in error, amounted tó nothing more than' that the written acknowledgment was legal evidence in the action. The effect of that evidence, or how far it would go to establish the right of ’the plaintiff below to recover, was not made a question in the Circuit Court, and does not appear to have been there decided: of course, it is not before us for decision. Whether, where no new consideration passes between the newly contracting parlies, the consideration for the promise to pay the debt of another should be in writing, as well as the promise itself, is a question upon which the decisions arc contradictory, and respecting which we give no opinion

(1). We merely determine, as the Circuit Court did, that the written acknowledgment under consideration was admissible as evidence, without saying what other evidence, if any, 'was essential to sustain the cause.

Per Curiam.

The judgment is affirmed with costs.

The English statute is 29 Car. 2, c. 3. For the Indiana statute, see E. C. 1831, p. 269. It has been held that, under the English statute, to charge the defendant on a promise to pay the debt of a third person, the consideration of the promise, as well as the promise itself, must be in writing. The leading case for this doctrine is Wain v. Warlters, 5 East, 10. That case, though occaaionaily questioned in England, continues to be there adhered to. 2 Stark. Ev. 2d Eng. ed. 349. Some of the decisions in the United States follow the case of Wain v. Warlters, and some oppose it. See note (1) to Stark. Ev. supra, 5th Am. ed.

“But any person may bind himself by an express parol promise, founded upon a new consideration, to pay the amount of another person’s debt. As where A. having a lien upon policies of insurance in his hands, delivers them up to an agent of the owner, on an agreement that the defendant, the agent, will pay the amount of a bill drawn by his principal, and accepted by A. for the accommodation of the principal. The principle of this and similar cases seems to be very clear. A. had a right to retain the policies, and if the defendant had personally undertaken to pay him a sum of money in consideration of his giving up the policies, the doing so, being a relinquishment of ah advantage by the plaintiff, would have been a good consideration to enforce the payment ’of the money; but if the relinquishment would have been a good consideration to support a promise to pay money, why should it not be equally sufficient to support any other promise? If a promise by the defendant to pay 201. (the amount of the bill) would have been binding, why should not the promise to- pay the amount of the bill specifically, be also binding? So, where the plaintiff had a lien on goods for a debt due from A. B., and the defendant, in consideration that the plaintiff would relinquish his lien, promised to pay the debt, it was held that the case was not within the statute. So, where the plaintiff distrained for rent, and the defendant, an auctioneer, being in possession of the goods, and about to sell them for the benefit of the creditors, by virtue of a bill of sale made by the tenant, promised to pay the debt. Williams v. Leper, 3 Burr. 1886; 2 Wils. 308.—Castling v. Aubert, 2 East, 325, 330.—Bampton v. Paulin, 4 Bing. 264.”—Stark. Ev. supra, 346. See the American cases on this subject. Lb. note (2).