Charles Emerson, Plaintiff In Error v. Horatio Slater

• Decision Date: 01 December 1859
• Citation: 16 L.Ed. 360,22 How. 28,63 U.S. 28
• Parties: CHARLES EMERSON, PLAINTIFF IN ERROR, v. HORATIO N. SLATER
• Court: U.S. Supreme Court

63 U.S. 28

22 How. 28

16 L.Ed. 360

CHARLES EMERSON, PLAINTIFF IN ERROR, v. HORATIO N. SLATER.

December Term, 1859

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Massachusetts.

It was the same case which was before this court at a previous term, and is reported in 19 Howard, 224.

The substance of that case and the new view of the present one are fully stated in the opinion of the court, to which the reader is referred.

It was argued by Mr. Hutchins and Mr. Cushing for the plaintiff in error, and Mr. Bates for the defendant.

The points of the argument of the counsel for the plaintiff in error, which are material to be stated in the present report, were the following:

I. At common law, a contract reduced to writing may, by parol agreement of the parties subsequently made, be varied, waived, or discharged, whether the same is a simple contract, or under seal.

Browne on Statute of Frauds, sec. 409, (b) sec. 423.

1 Greenl. on Evidence, secs. 302, 304.

Snow v. Inhabitants of Ware, 13 Met., 42.

Marshall v. Baker, 1 Appleton, 402.

Ballard v. Walker, 3 Johns. Cases, 60.

Goss v. Lord Nugent, 5 Barn. and Adol., 65.

1 Phillips Ev., (Cowen and Hill's Ed.,) p. 563, w. 987.

Sherwin et al. v. Rut. and Bur. R. R., 24 Vt., 347.

Vicary v. Moore, 2 Watts, 451.

Besker et al. v. Troy and Rut. R. R., 27 Vt., 766.

Neil v. Chever, 1 Bailey, (S. C.,) 537.

Munroe v. Perkins, 9 Pick., 298.

White v. Parkin, 12 East., 578.

Fleming v. Gilbert, 3 Johns. Rep., 528.

Keating v. Price, 1 Johns. Cases, 22.

Low v. Treadwell, 3 Fairf., 441.

II. And there is no distinction in this respect between a contract in writing at common law, and a contract required to be in writing by the statute of frauds.

Browne on Statute of Frauds, sec. 423.

1 Greenl. on Ev., secs. 302, 304.

Cummings v. Arnold, 3 Met. 486.

Stearns v. Hall, 9 Cushing, 31.

Caff v. Penn, 1 M. and S., 26.

Goss v. Lord Nugent, 5 Barn. and Adol., 58.

VI. There is a fact in proof in this case, which did not appear in the case when before this court before—and that is, that when Slater made the agreement upon which suit is brought, securities were placed in his hands by the principal debtor to indemnify him for his liability. His promise is not, therefore, within the statute of frauds.

VII. A parol promise to pay the debt of another, in consideration of property placed by the debtor in the promissor's hands, is not within the statute of frauds. It is an original promise, and binding upon the promissor; and in this respect it is immaterial whether the liability of the original debtor continues or is discharged.

1 Browne on Statute of Frauds, sec. 187, p. 184.

Wait, appellant, v. Wait, 28 Vt., (2 Wash.,) 350.

Farley v. Cleveland, 4 Cowen, 432.

1 Smith's Leading Cases, 329.

Hindman v. Langford, 3 Strobhart's Rep., 207.

Cross v. Richardson, 30 Vt., 641.

Fisk v. Thomas, 5 Gray, 45.

Rand v. Mather, 11 Cushing, 1.

Olmstead v. Greenly, 18 Johns., 12.

Hilton v. Dinsmore, 21 Maine, (8 Shep.,) 410.

Cameron v. Clark, 11 Ala., 259.

Loring v. Lee, Spencer, (N. J.,) 337.

Goddard v. Mochbee, 5 Cranch C. C., 666.

Stanley v. Hendricks, 13 Iredell, (N. C.,) 86.

Lee v. Fontaine, 10 Ala., 755.

McKenzie v. Jackson, 4 Ala., 230.

Lippencott v. Ashfield, 4 Sandford, 611.

Westfall v. Parsons, 16 Barb., 645.

Todd v. Tobey, 29 Maine, 219.

VIII. The defendant having waived by parol the performance of the work at the day, thereby himself prevented performance, and he cannot avail himself of the non-performance.

Browne Stat. of Frauds, secs. 423, 424, 425, 436, p. 486.

3 Johnson N. Y., 531.

2 Selden N. Y., 203.

IX. When this case was before this court before, no question was made nor discussion had, whether the promise of the defendant was within the statute of frauds; the question was, simply, whether time was of the essence of the contract; and this court decided that it was.

Emerson v. Slater, 19 Howard, 224.

X. The evidence offered by the plaintiff in error, under the common counts, that the defendant in error had securities in his hands to indemnify him for his promise, took the case from the statute of frauds. It made him an original promissor for the work done after November 14, 1854, (the date of the contract,) and he is therefore liable upon the common counts upon a quantum meruit as an original debtor.

The counsel for the defendant in error contended that the decision of this court in the previous case involved the following propositions:

1. That the original contract between Emerson and the corporation, to build the bridges for the corporation, remained in full force, unaffected by the contract between Emerson and Slater.

2. That, by force of his contract, Slater stood in the relation of a surety for the corporation, for the amount for which he had agreed to become liable.

3. That the time of performance (December 1) was of the essence of Slater's contract, and he was not liable thereon, as Emerson had failed to perform within the time fixed.

If, therefore, the contract of November 14, 1854, was a special promise for the debt, default, or misdoings, of another, it was within the statute of frauds, and the alleged waiver, extension, and substitution, must be in writing, and could not be proved by parol.

This court had decided that performance by the 1st day of December was 'an essential part of this contract.' And, manifestly, a contract cannot be varied in one of its essential parts, without making a new contract.

And when such new contract has been made, it must be declared on. A declaration on the old contract cannot be sustained by showing that, though the old contract has not been performed in one of its essential parts, which is a condition precedent to recovery, yet that a new bargain had been made, by which that essential part had been stricken out of the contract, and something different substituted in its place.

And, accordingly, this plaintiff declares on such new contract in his last count. And, inasmuch as the contract declared on is that of a surety, it must be in writing, and wholly in writing. The statute of frauds is not complied with by producing a contract which is partly in writing, while one of its essential parts rests in parol.

(The counsel then examined a number of English and American cases, to show that this change in the contract fell within the statute of frauds.)

The plaintiff, at the trial in the Circuit Court, introduced three deeds of land, from the railroad corporation to the defendant, dated three days after the defendant entered into the contract of November 14, and said to have been made to indemnify the defendant from his liability under the said contract.

But we are not aware of any case or dictum showing that because a surety, after he has become bound as such, takes security from his principal to indemnify himself against loss by his contract of suretyship, he thereby ceases to be a surety and becomes a principal debtor. There are decisions, no doubt well founded, that an absolute parol promise to pay the debt of another, in consideration of property put into the promissor's hands to enable him to pay the debt, makes the debt his own, and he is not a surety, within the statute of frauds.

But there is no evidence in this record to prove such a case. Slater's promise was not made in consideration of this property. There is no evidence of any agreement, even, to convey it to him at the time he entered into his contract. And it was not actually conveyed to him till three days afterwards. And it is not stated that when it was conveyed to him, it was to enable him to pay the debt, or that it was made him property in consideration of his promise to pay the debt. The contrary is stated. It was put into his hands 'to indemnify the defendant from his liability in said contract, dated November 14, 1854, with the defendant.' Until the defendant should be in some way indemnified, the land, in equity, belonged to the corporation. And as Slater's promise depended on the performance by Emerson before December 1st, if he should not so perform, Slater would not be indemnified, and would have no claim on the land.

It is submitted, no authority exists for the position, that a conditional undertaking to pay the debt of another is taken out of the statute of frauds, because security is given by the principal to indemnify the surety, three days after the conditional contract of suretyship is made.

However true it is that assumpsit for a quantum valebant or quantum meruil will lie, where the terms of a special contract have not all been complied with, to recover the value of the labor and materials held and enjoyed by the defendant, yet nothing is better settled, than that no action can be maintained on the contract itself, without alleging, with exactness, performance in entire accordance with the terms of the contract, including that in relation to time of performance, and proving the allegation.

This proposition has been affirmed in nearly every State.

(The counsel then referred to decisions in this court, and the courts of almost every State in the Union.)

Emerson cannot recover, therefore, unless it be on the common counts; and not then, unless it be on the quantum meruit and valebant. Can he recover on these?

The agreement of November 14 shows that the money an notes given by Slater were to apply to the then indebtedness of the company to Emerson, and were not to apply to any work to be done heretofore—and this was one of the points argued at the former trial, contending that Slater was only a surety. That Emerson understood that he was doing the work for the company is evident from the fact that he charged the company with it, presented to them his bills, settled with its committee, and never presented any charges for work to Slater.

If, as this court has heretofore decided, Slater was a surety for the price of work done for the corporation, there can be...