George v. Hoskins

• Decision Date: 27 March 1895
• Parties: GEORGE v. HOSKINS.
• Court: Kentucky Court of Appeals

30 S.W. 406

GEORGE v. HOSKINS.

Court of Appeals of Kentucky.

March 27, 1895

Appeal from chancery court, Jefferson county.

"Not to be officially reported."

Action by R. H. Hoskins against Catharine George. From a judgment for plaintiff, defendant appeals. Affirmed.

W. O Harris, for appellant.

Lane &amp Burnett, for appellee.

PAYNTER J.

Hoskins was surety on a note amounting to $235, for E. C. George, who was the husband of the appellant, Catharine George. It was about to mature, and it is alleged that at the instance and request of the appellant, and with the understanding and agreement that she would repay him any sums he might be compelled to pay on account of signing a renewal note, the appellee did sign the note as the surety of E. C. George. E C. George failed to pay the note, whereupon appellee did pay it, and brought this action against appellant to recover on her alleged promise of indemnity, and sued out an attachment against her property. Appellant denied that she had made the alleged verbal promise, and claims that, if it was made, she is not liable thereon, because it was the promise to pay the debt of another, and is within the statute of frauds. The promise upon which this action was based was not made to the creditor of E. C. George. This action is not by the creditor to whom the debt was due, but it is an action upon a promise to pay appellee any sums of money which he might be compelled to pay by reason of the fact that he signed the renewal note. To induce appellee to sign the note, the appellant promised to reimburse him any sums he might be compelled to pay by reason thereof. The testimony satisfactorily establishes the promise. It was not a promise to pay the debt of another. E C. George did not owe the appellee a debt. It was simply a promise to indemnify appellee for becoming the surety of E C. George. It is an original undertaking, not within the statute of frauds, and enforceable though the promise be a verbal one. Dunn v. West, 5 B. Mon. 381. It is also held in Lucas v. Chamberlain, 8 B. Mon. 276, that a promise of indemnity to one if he will become the surety of another is an original promise, not within the statute of frauds. We might extend the discussion further, but as this court has so often in its opinions marked the distinction between a promise to answer for the debt of another and a promise made to the debtor, and has also so fully shown promises which are original undertakings and not within the statute of frauds, we deem a further discussion of the question unnecessary, except to cite, for the purpose of sustaining our views, Jones v. Letcher, 13 B. Mon. 368; Williams v. Rogers, 14 Bush, 776; Spadone v. Reed, 7 Bush, 455; North v. Robinson, 1 Duv. 71; Brashears v. Moran, 1 Ky. Law Rep. 417. However, we will notice the case of Jones v. Walker, 13 B. Mon. 356, which is relied upon by counsel for appellant as sustaining his contention that the promise, if made, was within the statute of frauds. Judge Marshall delivered the opinion of the court in that case, as he did in Dunn v. West and Lucas v....