Combs v. Harshaw
| Decision Date | 31 January 1869 |
| Citation | 63 N.C. 198 |
| Court | North Carolina Supreme Court |
| Parties | JESSE COMBS v. JOSHUA HARSHAW. |
OPINION TEXT STARTS HERE
A promise by a third person to answer for the debt of another, which other is not thereupon discharged from all liability--is within the Statute of Frauds, and must be in writing.
That there is a consideration for such promise, does not affect this rule.
( Draughan v. Bunting 9 Ire. 10; Stanley v. Hendricks 13 Ire. 86, cited and approved.)
CASE, tried before Cannon, J. at Fall Term 1868 of the Superior Court of CHEROKEE.
The facts were that in 1864, a son of the defendant, who was under age, and a soldier in the Confederate service, in company with other soldiers, met the plaintiff in the road, and forcibly took from him his horse. After the termination of the war, Harshaw, in consequence of this and other acts, left his father's house in Cherokee County. The plaintiff demanded payment for his horse from the defendant, who promised, that if the former would allow his son to come home, he (the defendant) would refer the matter to some neighbors, who should say what ought to be done. Afterwards the defendant refused to refer, and the plaintiff brought this suit.
Under the charge of his Honor there was a verdict for the plaintiff. The defendant moved for a new trial, which was refused; and he appealed.
Phillips & Merrimon, for the appellant .
No counsel, contra.
SETTLE, J. (After stating the case as above.)
Passing by the objection that the agreement to refer is too vague and uncertain to found an action upon, we will consider the point made on the trial below.
Does this promise come within the provisions of the statute of frauds?
When there is an existing cause of action between two parties, and a third party merely adds his parol promise to the subsisting liability, without the original cause of action being discharged, his promise falls within the statute, and cannot be enforced. Draughan v. Bunting, 9 Ire. 10, and Stanley, et al. v. Hendricks, 13 Ire. 86.
Here the plaintiff had a cause of action against young Harshaw, which, it is not pretended was released by the agreement to refer. The father, being in no way responsible, superadded his promise to the liability of his son.
His Honor held, that this being a new promise, and supported by a sufficient consideration, the plaintiff was entitled to recover.
Although a new promise on the part of the father, it was not substituted for the liability of the son, and did not release the son from...
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Peele v. Powell
...not arrest the debtor, because the debtor remained liable (Britton v. Thrailkill, 50 N.C. 331; Rogers v. Rogers, 51 N.C. 300; Combs v. Harshaw, 63 N.C. 198). the promise is for the benefit of the promisor, and he has a personal, immediate, and pecuniary benefit in the transaction, as in Nea......
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Newbern v. Fisher
... ... Because ... of the decisions in Draughan v. Bunting, 31 N.C. 10, ... Stanly v. Hendricks, 35 N.C. 87, and Combs v ... Harshaw, 63 N.C. 198, North Carolina has been classified ... with the minority on this subject. But a careful examination ... of these ... ...
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Haun v. Burrell
...35 N. C. 86; Britton v. Thrailkill, 50 N. C. 329. And this is true, though there is a consideration for the new promise (Combs v. Harshaw, 63 N. C. 198; Rogers v. Rogers, 51 N. C. 300); it being well said, and repeated in more than one case: "It requires no statute to make void a promise no......
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Kahn v. Lucchesi
...signed by the party to be charged. Sand. & H. Dig., § 3469, second clause; Browne, Stat. of Frauds, § 155 and cases, 2 Day, (Conn.), 457; 63 N.C. 198; 33 Kans. 580; Ark. 194; 21 A. 601; 45 Ill.App. 155; 49 Ill.App. 509; 41 N.E. 164; 50 Ind. 130; 60 Conn. 71; ib. 468; 31 N.E. 539. Hence test......