Clark v. Jones

• Decision Date: 26 July 1888
• Citation: 4 So. 771,85 Ala. 127
• Parties: CLARK ET AL. v. JONES.
• Court: Alabama Supreme Court

4 So. 771

85 Ala. 127

CLARK ET AL. v. JONES.

Supreme Court of Alabama

July 26, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action of assumpsit by Clark & Wadsworth against W. B Jones. Defendant had contracted with one Wright for the building of a house upon a stipulated price, and the payments therefor were to be made in installments. Clark & Wadsworth had sold Wright lumber for defendant's house prior to June 30, 1884, amounting to $243.85. On that day Wright gave plaintiffs' agent an order on defendant for that amount. Between that day and July 10th plaintiffs furnished Wright with additional lumber to the amount of $59, and Wright gave them an order on defendant for that amount. On August 14 1884, wright gave up his contract, as was shown in the record by a written instrument from him to that effect. The charges as given by the court at the request of the defendant, raise the question of the statute of frauds, which was specially pleaded by the defendant. Among the charges asked by the plaintiff in writing, and refused by the court, to which reference is made in the opinion, are the following: (1) "If the jury believe, from the evidence, the defendant on the 10th day of July was indebted to Wright on the contract for building the house in a sum greater than the amount of the two orders, one for $243.85 and the other for $59, and if the defendant, upon Wright surrendering his contract, and as a consideration therefor, stated to Wright that he would have to pay the bills outstanding, including the orders of plaintiffs, then it was the duty of defendant to retain and pay these bills, including the orders of Wright to plaintiffs." (2) "If the jury believe, from the evidence, that the defendant at any time promised or agreed with Wright or Horton [plaintiffs' agent] that he would hold back or retain enough of the money to be paid on the contract to Wright to pay the claims or orders of plaintiffs, then if the jury believe from the evidence that after that time the defendant became or was indebted to Wright in a sum as great as the sum of the orders, then it was the duty of the defendant to retain this amount, and, if he failed to do so, then the defendant would be liable." There was verdict and judgment for the defendant; whereupon the plaintiffs appealed, and assign the rulings of the court, and the giving and refusing of the respective charges, as error.

Tompkins, London & Troy and Rice & Wiley, for appellants.

Watts & Son, for appellee.

CLOPTON J.

W. C Wright was indebted to plaintiffs for lumber furnished to be used in building a house, which he had contracted with defendant to build for $2,000, payable in five installments, the last of which, being for $500, was payable on completion of the house according to the plans and specifications. The first claim of plaintiffs is that in July, 1884, the defendant promised the plaintiffs' agent, if they would not file a lien against the house for their claim, he would pay the same out of the next payment due Wright. The promise was not in writing. The instructions of the court present the question whether the promise is within the statute of frauds, which requires "every special promise to answer for the debt, default, or miscarriage of another" to be in writing, expressing the consideration, and signed by the party sought to be charged. The doctrine which distinguishes between an original promise-a new debt of the promisor-and collateral undertaking-a guaranty of suretyship-for the debt of a third person is often difficult of application; but there are some tests which may be regarded of controlling, though not conclusive, consideration. The true test appears to be whether the undertaking of the promisor was essentially a new debt of his own, while the payment of the third person's debt was a collateral or incidental consequence, or was the latter its principal and direct purpose. Bish. Cont. §§ 12, 63. Generally, any promise to pay another person's debt, which is not discharged or released by the terms of the promise or other contemporaneous arrangement, is within the statute. To this rule there are exceptions. A party may make a valid oral contract, which operates to create a new debt of his own, if founded on a new and independent consideration, though the effect of the payment is to pay another's debt. In order, however, to have this effect, the essence of the new undertaking must be the payment of the promisor's own debt by paying the debt of a third person. The consideration relied on to support the promise of defendant, and to constitute it his own debt, is the forbearance of plaintiffs to file a lien for their claim. The plaintiffs had no lien on the property, and surrendered none. They were subcontractors, and, if they had filed the statement required to obtain a lien, they could only have subjected any unpaid balance in the hands of defendant, and would have acquired a lien on the property to secure the payment of the same only to that extent. Code 1876,§ 3444. The forbearance to file a lien was not of benefit to the defendant, and filing it would not have operated as a detriment to him in the...