Corkins v. Collins

• Decision Date: 21 April 1868
• Citation: 16 Mich. 478
• Court: Michigan Supreme Court
• Parties: Abner A. Corkins v. Simon S. Collins

16 Mich. 478

Abner A. Corkins v. Simon S. Collins

Supreme Court of Michigan

April 21, 1868

Heard April 14, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action brought to recover the value of a bill for board.

The defense was the statute of frauds.

Judgment was rendered for defendant.

The facts are stated in the opinion.

Judgment affirmed, with costs.

Vining & Minnock and Moore & Griffin for plaintiff in error:

1. The testimony in this cause is sufficient to give the promise of the defendant the character of an original undertaking.

The nature of the transaction is this: Corkins accepted Collins as his debtor; relinquished his security and discharged Sykes.

The intention of the parties must govern: 18 Me. 324.

If Sykes was discharged, the promise of Collins is not within the statute of frauds. This is settled law: 3 Pars. on Cont., 23; Brown on Frauds, § 193; 9 Vt. 137, 33, 132; 8 Gray 239.

2. The relinquishment of a lien or security on the part of a creditor, which he holds for a debt due him, takes a promise, made in consideration of such surrender, out of the statute of frauds, providing any benefit or advantage inures to the promisor: 3 Burr. 1886; 2 East, 325; 6 Car. and Payne, 752; 16 Wis. 557; 20 N. J., 336; 3 Strob. 207; 21 Me. 410; 28 Vt. 351; 2 Allen 423; 3 Met. 369; 5 Cush. 488.

But though no benefit or advantage inures to the promisor, yet, according to highly respectable authority, the promise is not within the statute: 3 Esp. 86; 6 Vt. 54; 28 Ind. 697; 30 Id. 641; 14 Me. 138; 17 Id. 508; 3 Ill. 321; 5 Minn. 462; 1 McCord, 353; 1 Rich. 213; 7 Ind. 81; 7 H. and J., 392; 4 Ala. 230.

In cases where the collateral promise (so-called) is a part of the original agreement, and founded on the same consideration, moving at the same time between the parties, the test is, to whom is the credit given; what is the intention of the parties, gathered not alone from the language expressed, but from all the circumstances of the case.

And it is only when the promise is distinctly collateral that it is within the clause of the statute: 3 Pars. on Cont., 19; 1 E. D. S., 192; 6 Ala. 694; 19 Ind. 100; 2 Ia. 528; 27 N. J., 449.

In cases where there is already a subsisting debt or demand, and the promise is founded upon a subsequent and distinct understanding, why may we not arrive at the truth in the same manner, namely, by ascertaining what is the intention of the parties? to whom is the credit given? rather than to say absolutely that the promise is void unless some benefit inures to the promisor?

Again, every case similar to the one at bar is nothing more than the purchase of the security with the consent of the debtor.

The promisor takes the benefit of the purchase. If he chooses at once to yield up that advantage to the debtor, must the promisee suffer?

The statute of frauds was not enacted to reach such a case; it is not within the mischief to be remedied.

The position we have taken, to quote from Judge Story, "seems to us a reasonable doctrine, and tending rather to suppress than encourage fraud."

Patchin & Brown, for defendants in error:

There is one special assignment of error, viz.:

That the said court instructed the jury "that under the evidence as given in said cause, the verdict must be for defendant."

Under the testimony, the only question was clearly that of law, whether the promise made was within the statute of frauds; and it was the province of the court, and the court only, to decide it. Where there is no conflict of evidence the question is one of law, upon which direct instruction ought to be given: 5 Mich. 501.

Every special promise to answer for the debt, etc., of another must be in writing, and signed by the party to be charged thereby: Comp. L., § 944.

Where the object of the promise is to obtain the release of the property of the debtor or other forbearance to him (the debtor), it is within the statute: 3 Pars. on Cont., 24; 3 Met. 402; 14 Wend. 246; 4 Denio 275; 1 Strobhart 5; 21 Me. 410; 4 Yerg. 563; 12 Mich. 15; 21 N. Y., 411.

There is a class of cases where there is a consideration moving directly between the promisor and promisee, where, although the promise is to pay the debt of another, it need not be in writing, as where liens are discharged or securities given up for the promisor's benefit: 3 Pars. on Cont., 26, note; 10 N. H., 32; Roberts on Statute of Frauds, §§ 203-210.

But this case does not belong to this class. Corkins was to deliver up Sykes's trunk to him and not to Collins, or for his benefit, and he did so deliver them.

For some reason upon some subsequent understanding with Sykes, Collins took one of the trunks to his room, but there is no testimony tending to prove that this was done to secure Collins for his promise. If it was so it would make no difference, for this was a matter solely between Sykes and Collins, after Corkins had given up possession to Sykes.

Nor does the testimony tend to prove that Sykes was discharged by the agreement with Collins.

The doctrine is carried still further, and held in many authorities that, notwithstanding there is a sufficient consideration as between the promisor and promisee, the promise must be in writing: 23 Barb. 610; 2 Denio 45; 4 Johns. 422; 3 Humphrey 330; 12 Johns. 291.

Campbell, J. Cooley, Ch. J. and Graves, J. concurred. Christiancy, J. did not sit.

OPINION

Campbell J.:

Corkins sued Collins on a verbal promise to pay a bill for board and money lent, due from one James Sykes. The consideration was the release of certain trunks supposed to be held for the debt. The defense was the statute of frauds. Upon the testimony the court directed the jury to find for defendant.

There was no testimony tending, in our opinion, to show an extinguishment of the liability of Sykes, and the property was released for his sole benefit. If Corkins had a lien upon it, the only question to be decided is whether a promise to pay the debt of another is exempted from the operation of the statute requiring such promises to be in writing, by the release of property to the original debtor.

Such a release of a valid lien or claim would be a sufficient consideration for a written promise, for if a consideration passes from the promisee it usually makes no difference to whom it passes. But the question before us is whether a party who promises to pay the debt of the person who first owed and still owes it, for a consideration passing to that person, is to be regarded as promising to pay on his own behalf or on the original debtor's behalf. If the debt is payable on his own behalf the promise may be verbal. If not, then it must be in writing.

It is not pretended that an extension of time, or any other agreement involving no release of property or extinguishment of liability, if made in favor of the principal debtor,...