Potter v. Brown

Citation35 Mich. 274
CourtSupreme Court of Michigan
Decision Date03 January 1877
PartiesGeorge N. Potter v. Thomas H. Brown

Heard October 25, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Eaton Circuit.

Judgment reversed, with costs, and a new trial granted.

E. A. Foote, for plaintiff in error, to the point that an action on the case cannot be mingled with contract so as to permit a recovery for what is merely breach of contract, or for any damages except such as plaintiff has suffered by reason of some tort, cited: Gould Pl., ch. 4, §§ 86, 92, 99; Burrill Pr., 74; 1 Hill 225; 6 B. & C., 268; 10 Barb. 445; 1 Hill on Torts, ch. 1, §§ 26, 27, 29; 5 B. & A., 652; 7 Mass. 284; 21 Barb. 82; the failure to become a joint maker gives a measure of damages entirely distinct from the failure to indemnify, the liability of a joint maker being different from that of an indemnitor, and the right of action for the tort would be complete on failure to become joint maker, while that on the contract of indemnity, if valid under the statute of frauds, would be complete upon failure to pay the note, and on payment being made by plaintiff, even though defendant had signed as joint maker; and in that case only assumpsit would lie, and set-off and recoupment could be pleaded, and all other defenses in assumpsit, such as non-joinder of all the contracting parties; and if the declaration be in case, the contract set up can only be regarded as matter of inducement and the measure of damages must be confined to the tortious part of the transaction. But if the declaration is in assumpsit the consideration becomes an important element and must be both alleged and proved as alleged: see 13 Mich. 123, 207; 1 Chitty Pl., 294, 295, 298; 1 Mich. 487; 12 Mich. 73; and in stating contract in tort, when it is necessary as matter of inducement, the same accuracy is necessary both as to the allegation and proof: 1 Chitty Pl., 385; that an action in tort founded upon a contract void by the statute of frauds cannot be maintained: 2 Addison on Torts, 1103; Dung v. Parker, 52 N. Y., 494; 45 N. Y., 589; Smith v. Harris, 3 Eng. C. L., 311; Boyd v. Stone, 11 Mass. 341; Gallage v. Brunell, 6 Cow. 346; Charter v. Becket, 7 T. R., 201; that the undertaking declared upon, and which the facts tended to prove, was a special promise to answer for the debt or default of Shively and was void because not in writing: Comp. L., § 4698; 11 Mich. 219; 12 Mich. 225; 16 Mich 478; 17 Mich. 351; 18 Mich. 345; that the basis of the transaction and the consideration of the alleged promise was Shively's agreement to execute a mortgage upon the mill as the ultimate security for the debt, and the defendant's promise was in legal effect to answer for Shively's default in furnishing the security, and this to be valid should have been in writing: Browne Stat. Frauds, §§ 212, 214 c; 6 Blackf. 367; 4 Barb. 131; 37 Vt. 391; 13 Ohio St., 34; 50 Penn. St., 51; 12 Mich. 225; 4 Johns. 422; 12 Johns. 291; that defendant's promise was collateral to that of Shively to indemnify plaintiff and the two promises were based on the same consideration and had "a simultaneous origin and sprung from the same root:" 12 Mich. 10; that where the third person remains liable, even though there is a good and new consideration moving to the promisor, the promise is within the statute: Green v. Cresswell, 10 A. & E., 453; 13 Ohio 340; 98 Mass. 30; 3 Metc. 402; 20 Wend. 201; 2 T. R., 80; that the continuing liability of the original debtor is the test: 42 N. Y., 243; 2 Denio 60; 2 Comst. 225; 19 Barb. 258; 4 Denio 559; 38 N. Y., 187; that a promise to indemnify, when a guaranty, is within the statute: Green v. Cresswell, 18 Ad. & El., 453; Browne Stat. Frauds, § 160; 4 Barb. 131; 5 Hill 483; 12 Mich. 224; 9 Ired. 10; 12 Ohio 219; Am. Law Reg., 1874, pp. 593, 721; that the alleged promise to sign or endorse the note was within the statute, being in effect a promise to give the written memorandum which the statute requires: Browne Stat. Frauds, § 174; 2 McMullen 322; 4 Strobh. 481; 5 Hill 483; 1 Sandf. 14; 1 Hill 82; that the promise to pay the note of another person, though the promisor has derived a benefit from the transaction for which the note was given, is not an original promise, but is a guaranty and collateral to the principal obligation: Davis v. Caverly, L. & Eq., Rep., July 12, 1876, p. 48; 3 Metc. 401; 98 Mass. 296; 106 Mass. 400; 118 Mass. 137.

M. V. & R. A. Montgomery and P. T. Van Zile, for defendant in error, argued that the objection to the form of action should have been raised by demurrer; that where a party goes into court and litigates a cause through on its merits, without objecting to the form of action, he is bound by his acquiescence, or at least it will not be reviewed on error: Frankenthal v. Camp, 55 Ill. 170; Fisher v. Hepburn, 48 N. Y., 41; Platt v. Brand, 26 Mich. 173; Jennison v. Haire, 29 Mich. 207; that there is no doubt the declaration was intended to be in case; that assumpsit could not have been maintained by Browne alone, certainly not upon the express promise made by Potter at the time the note was signed: 1 Chitty Pl., 7, 8; Wright v. Post, 3 Conn. 142; that case was the proper form of action; that if Potter agreed to sign the note as principal maker, thereby making himself primarily liable, and he negotiated the note without having done so, he made himself liable in tort; and that if he agreed to endorse and then negotiate for a particular purpose in which the plaintiff was interested, and did not endorse, but negotiated for another purpose, that was tortious; that if the debt was Potter's, and the note signed to enable him to raise money to meet it, then when the note matured, the law raised the obligation that he should take care of it, and if he did not do so he was liable in case to the person who was compelled by legal process to pay it for him: Burnett v. Lynch, 5 B. & C., 609; Hyde v. Moffatt, 16 Vt. 271; Browne Stat. Frauds, p. 155, § 165; that an action on the case in its most comprehensive form includes assumpsit: 1 Chitty Pl., 132; that to determine whether a cause of action is for a tort or upon promises, resort must be had to the substance of the counts: Carter v. White, 32 Ill. 509; and the declaration set out fully the very promise and undertaking entered into and upon which a recovery was sought; that the plaintiff's theory was, that Potter agreed to sign or endorse the note and to take care of it when due; that the promise alleged was not within the statute of frauds as a promise to answer for the debt or default, etc., of another; (1) There was no existing debt, the note not having been given; (2) It was an original promise or undertaking on Potter's part, and it was not a promise to pay if Shively did not, but it was absolute that he would himself take care of the note when it came due: Townsend v. Long, 77 Penn. 143; Holmes v. Knight, 10 N. H., 175; Vogel v. Melms, 31 Wis. 306; Shook v. Van Mater, 22 Wis. 532; Garner v. Hudgins, 46 Mo. 399; (3) It is not a promise on the part of Potter to pay the debt of Shively, who was, as is conceded, the principal debtor, but it was a promise of Potter to protect and hold harmless the plaintiff; and that it is well settled that in order to bring a promise within this clause of the statute it must be made to the party to whom the person undertaken for is liable, which is not the case here: 3 Pars. Cont., (5th ed.), 21, note p.; Hargraves v. Parsons, 13 M. & W., 561; Eastwood v. Kenyon, 11 A. & E., 438; Pratt v. Humphrey, 22 Conn. 317; Barker v. Bucklin, 3 Denio 45; Alger v. Scovel, 1 Gray 391; Perkins v. Littlefield, 5 Allen 370; Dunn v. West, 5 B. Mon., 376; 8 B. Mon., 276; and see 2 Comst. 225; 4 Hill 178.

OPINION

Campbell, J.

Brown recovered judgment against Potter upon a claim that Potter had failed in the performance of an undertaking to become co-signer of a note and to pay the note at maturity, in consideration of which promise Brown signed it.

The note was a joint and several note signed by Brown with two other makers, Thomas Shively and H. J. Maynard, dated at Charlotte, June 2, 1874, and payable in ninety days, at the First National Bank of that place, to the order of the cashier. Brown had to pay it after judgment.

The object of the note was to raise money for the machinery of a mill which Shively was building, and in aiding which all the parties took an interest and had done some work and furnished some means. The case made out by the declaration was, that Potter desired to raise a loan of two thousand dollars and promised Brown if he would sign the note that he, Potter, would sign it also, and pay it, both of which he failed to do. A history of various subsequent transactions between Potter and Shively is set forth, the bearing of which on the issue we have not discovered. The declaration shows suit, judgment and satisfied execution against Brown.

The most important questions seem to relate to the statute of frauds,--it being claimed that the debt was Shively's, and that the promise, being one to pay or be responsible for the debt of another, should have been in writing.

It does not appear, either in the pleadings or proofs, that Shively had requested Brown or Maynard to sign this note, or that any one had made the request but Potter. There is evidence to show that the money was intended to be used for Shively's benefit, and to pay his debt. But the declaration avers that the loan for which the note was to be given was on behalf of Potter and not of Shively, and if this case should be made out, then the note itself concerning which the controversy arises, was not Shively's debt any more than that of Brown and Maynard. The fact that Potter might use the money for Shively's benefit would not make it...

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11 cases
  • Harrison v. Lakenan
    • United States
    • Missouri Supreme Court
    • June 15, 1905
    ... ... legal effect, the same promise, there is no variance ... Wheeler v. Reed, 36 Ill. 81; Potter v ... Brown, 35 Mich. 274; Railroad v. McDonough, 21 ... Mich. 165; Nimm v. Towers, 23 S.W. 1117; ... Railroad v. Friedman, 146 Ill. 583 ... ...
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    • June 26, 1894
    ...51 Ind. 555;Mills v. Brown, 11 Iowa, 314;Garner v. Hudgins, 46 Mo. 399;Vogel v. Melms, 31 Wis. 306;Green v. Brookins, 23 Mich. 48;Potter v. Brown, 35 Mich. 274;Perley v. Spring, 12 Mass. 296;Chapin v. Lapham, 37 Mass. 467;Aldrich v. Ames, 9 Gray, 76; Apgar's Adm'rs v. Hiler, 24 N. J. Law, 8......
  • Patrick v. Whitely
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    • Arkansas Supreme Court
    • May 27, 1905
    ...Pl. § 205. A judgment cannot be sustained upon appeal when the case proved is not the case made by the proof. 45 Cal. 514; 56 Ib. 262; 35 Mich. 274; 36 Miss. 458; 41 Miss. BATTLE, J., HILL, C. J., and McCULLOCH, J., dissent. OPINION BATTLE, J. This action was commenced on the 27th of May, 1......
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    • Nebraska Supreme Court
    • June 26, 1894
    ... ... 250; Yale v. Edgerton, 14 ... Minn. 194; ... [59 N.W. 798] ... Goetz v. Foos, 14 Minn. 265; Horn v. Bray, ... 51 Ind. 555; Mills v. Brown, 11 Iowa 314; Garner ... v. Hudgins, 46 Mo. 399; Vogel v. Melms, 31 Wis ... 306; Green v. Brookins, 23 Mich. 48; Potter v ... Brown, 35 Mich ... ...
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