Proprietors of the Upper Locks v. Abbott

14 N.H. 157

• Court: Superior Court of New Hampshire
• Decided: August 15, 1843
• Status: Published

Opinion

Gilchrist, J.

If the defendant’s promise had been a collateral undertaking, in the circumstances of this case, it must have have been in writing. The principle established by the cases is, that if any credit is given to the party who receives the benefit, the undertaking of the other is collateral, and voidable unless in writing. Holmes vs. Knight, 10 N. H. Rep. 177, and cases there cited. Whether this-principle has not been sometimes so applied as to transform the collateral liability into a principal liability, as it is intimated in that case may have been done, need not be now inquired into, because it is the opinion of the court that the-promise by the defendant was clearly an original undertaking.

Sanborn had caused the lumber to enter the head of the canal. At this place the tolls are usually exacted for the passage through the locks. At this point, then, Sanborn had incurred no liability. He had his choice, either to pay the tolls, that the lumber might pass through the locks, or to withdraw the lumber from the canal. The lumber was not-to be stopped at this place if the tolls were not paid, but in-that event its stoppage would take place at the locks at the foot of the canal. In this emergency, application was made to Abbott, and he thereupon promised the agent that if he-would permit Sanborn to pass the lumber through the locks,he. Abbott, would be responsible for the tolls. This was not a promise to be answerable for Sanborn’s debt, nor a promise to pay the tolls if Sanborn did not pay them, but a new and distinct Contract, to which there were no parties but the agent and Abbott. The case is likened by the defendant to that of a traveller on a turnpike road, who is bound to pay his toll when he reaches the gate. But he is not bound to pay any toll if he does not pass through the gate. He may choose to turn back, and in that event he would be under no liability to pay toll for travelling over the road. Such was the position of Sanborn. He incurred no liability by causing the lumber to enter the head of the canal. It was its passage through the locks, and that alone, from which the liability arose. So far was the agent from making any contract with Sanborn, or from giving any credit to him, that he refused to do so.

In this case, the promise by Abbott may be considered as made for the benefit of Sanborn. But this fact alone does not render it necessary that the promise should be in writing. In Darnell vs. Tratt, 2 C. & P. 82, a mother took her son to school, and saw the master, but it did not appear what passed between them. Afterwards, a bill was delivered to the boy’s uncle, who said it was quite right, for he was answerable. It was held that the statute of frauds did not apply, and that there was competent evidence of an original undertaking by the defendant, the uncle. So a promise by a surety to indemnify the plaintiff if he also would become surety for the principal, is not within the statute. Chapin vs. Merrill, 4 Wendell 657. In Chapin vs. Lapham, 20 Pick. 467, the defendant promised to indemnify the plaintiff if he would assist the defendant’s son in his business. The plaintiff accordingly signed a note as surety, with the son as principal, which he afterwards paid, and it was held that the promise was not within the statute.

The opinion of the court is, that there should be

Judgment on the verdict.