Brown ex rel. Clardy v. Brown

• Decision Date: 31 October 1870
• Citation: Brown ex rel. Clardy v. Brown, 47 Mo. 130 (Mo. 1870)
• Parties: LAURA L. BROWN AND HUSBAND, TO USE OF WILLIAM CLARDY, Respondents, v. CHAS. L. BROWN et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 130

LAURA L. BROWN AND HUSBAND, TO USE OF WILLIAM CLARDY, Respondents,

v.CHAS. L. BROWN et al., Appellants.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

H. C. Hayden, for appellants.

I. A verbal promise to pay the debt of another is invalid in all cases, unless the debt is extinguished and the new promise accepted in its stead. (Jackson v. Rayner, 12 Johns. 291; Campbell v. Tindley, 3 Humph. 330; 3 Chandl., Wis., 31; 9 Verm. 136; 15 Verm. 215; 2 Metc. 423; 15 Pick. 159; 18 Pick. 369; Mundy v. Ross, 3 Green, N. J., 466.)

II. The court erred in striking out that part of the defendants' answer setting up as a defense the previous relinquishment of dower by Mrs. Laura Brown, in the deed of trust to Craddock, for the benefit of Lewis P. Payne, which deed of trust, amounting to some $6,000, was paid by Charles H. Brown in order to save the property from sale. This $6,000 was an encumbrance on her dower interest which existed at the time of the supposed contract; and if a sale had taken place under this deed of trust it would have not only passed George Brown's interest, but the dower interest of Mrs. Brown also. Charles H. Brown bought under the second deed of trust, and then, in order to save the property, was forced to pay off this prior encumbrance. (14 L. & M. 130; Caldwell v. Brown, 17 Mo. 564.)

C. H. Harding, for respondents.

The contract sued on was not within the statute of frauds, and might therefore be proven by verbal testimony. (1 Pars. Cont. 497-8; 2 Pars. Cont. 305; 7 Johns. 463; 8 Johns. 39, 376; 10 Johns. 412; 33 Mo. 123; 14 Me. 140; Roberts on Frauds.)

BLISS, Judge, delivered the opinion of the court.

The defendants were creditors of the husband of Laura S. Brown, and, being in failing circumstances, he proposed to execute to their use a trust deed of valuable real estate belonging to him. Mrs. Brown declined to release her dower, and claims to have consented to do so only upon the agreement by defendants to pay a certain debt from her husband to said Clardy, which had not been otherwise provided for. The defendants, having bid in the property at trustees' sale, refuse to pay the Clardy debt, and this suit is prosecuted to enforce their agreement to do so. The defendants denied the agreement, but judgment was obtained against them in the Circuit Court for the amount of the Clardy debt, which was affirmed in the District Court.

Upon the trial the defendants insisted that, as a matter of law, the contract could not be enforced because, first, it was a verbal agreement to pay the debt of another, and within the statute of frauds; second, it was a contract with a married woman; and third, that it was without consideration, inasmuch as the trust deed in favor of defendants was subject to a previous one signed by Mrs. Brown, which they were obliged to discharge.

The provision that no action shall be brought to charge any person upon a promise to answer for the debt of another, unless it is made in writing, is construed to apply to promises made to the creditor, and hence it is always held that while the creditor can not recover upon a collateral parol agreement made with him to pay his debtor's obligation, yet if such agreement be not made with the creditor it can be enforced if otherwise good, though not evidenced by any note or memorandum in writing. (Howard v. Coshow, 33 Mo. 118; Hargreaves v. Parsons, 13 M. & W. 561; Eastwood v. Kenyon, 11 Ad. & E. 438; Westfall v. Parsons, 16 Barb. 645; Barker v. Bucklin, 2 Denio, 45; Pratt v. Humphrey, 22 Conn. 317; Alger v. Scoville, 1 Gray, 391; Perkins v. Littlefield, 5 Allen, 370.)

The authorities cited by defendants' counsel go rather to the consideration of such promise, and to the inquiry whether it is an independent or collateral agreement. It is held that a parol contract with the creditor to pay the debt of another can in general only be enforced when the original debt is canceled, and the third person is alone looked to for the debt. It then becomes an independent agreement to assume the debt. It...