Ellett v. Britton

• Decision Date: 01 January 1853
• Citation: 10 Tex. 208
• Parties: ELLETT v. BRITTON.
• Court: Texas Supreme Court

10 Tex. 208

ELLETT

v.BRITTON.

Supreme Court of Texas.

1853.

In order that “a special promise to answer for the debt, default, or miscarriage of another person,” should be valid, under our statute of frauds, (Hart Dig., art. 1451,) it is not necessary that the consideration should be expressed in the writing.

Error from Bowie. The note sued on was expressed in the following terms, viz:

WASHINGTON, March 31 st, 1845.

On the first day of June next, I promise to pay Benjamin L. Britton, or order, one hundred and seventy-four dollars, for value received, which, when paid, will be in full of a judgment obtained by W. W. Williams, in the Hempstead County Court, against N. K. Ellett, the 8th October, 1841.

WM. ELLETT.

The record of the judgment referred to in the note was introduced in evidence, and it appeared that, after some ineffectual efforts at collection, a writ of execution, by order of B. L. Britton, the assignee of Williams, and who is plaintiff in this suit, was returned without levy. This was in October, 1844. W. W. Andrews, a witness, testified that he was not in the room when the note was made, but was in the house at the time, and was Britton's clerk; that the defendant assumed the payment of the judgment, and gave the note for its amount, and that, as a further consideration of said note, the property of N. K. Ellett, which had been levied upon by execution, was to be released on the execution of the said note, and that this was accordingly done; and that neither the said note, nor judgment, nor any part thereof, had ever been paid.

J. W. Ellett, for plaintiff in error. We contend that parol testimony was inadmissible, under the petition, to prove the consideration of the note sued on, because it was a promise to pay a debt of a third person not made at the time of the original contract, but subsequent thereto, and founded on the original consideration, and therefore a mere nudum pactum. (Story on Cont., 862, 863; 1 P. R. S. C., 499, 201; 2 Tex. R., 479, 480.) It becomes material to inquire whether this is an original contract for the satisfaction of the judgment or is only collateral and auxiliary thereto; because, if the former, the defendant in error should have proved that the judgment had been satisfied, and the transcript shows the reverse, and there was no other evidence of the fact. If, however, a collateral contract, the consideration of the promise should have been expressed as well as the promise. (2 Tex. R., 479, 480; Story on Notes, sec. 467, n. 3; 3 Dallas R., 415, 424; 5 Cranch R., 142, 151; 1 Pet. R., 499, 501.)

Young & Morgan, for defendant in error. The defendant represents that said cause was brought to this court for delay. He therefore requests that the judgment rendered in the court below be affirmed, with ten per cent. damages.

HEMPHILL, CH. J.

I shall not stop to inquire whether the note sued on might not be regarded as an original undertaking. If it be considered as a collateral engagement it will be in an attitude more favorable to the defendant, as it will then present a question of great importance, and which has not been heretofore adjudicated in this State; and that is, whether the note or agreement, having no consideration expressed therein, is void, or whether the consideration, as was done in this case, may be proven by parol.

The clause of the statute out of which this question arises may be expressed as follows: “No action shall be brought, whereby to charge the defendant, upon any special promise to answer for the debt, default, or miscarriage of another person, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing, signed,” &c. This clause is identical with that embodied in the statute of 29 Charles II, and the laws of most of the States of the Union, with the addition of the word ““promise,” which is not in the English statute, nor in those of many of the States. For more than a century subsequent to the English statute its practical, universal, and uniform construction had been that the consideration of the agreement, within the scope of the statute, need not be expressed on the face of the writing. For the first time, in 1804, in the case of Waine v. Warlters, 5 East., it was decided that the consideration must be expressed in the contract itself. This construction excited surprise, and was much questioned; but was finally recognized and followed in England as approved authority; (Story...