Gower v. Stuart
| Decision Date | 25 April 1879 |
| Citation | 40 Mich. 747 |
| Court | Michigan Supreme Court |
| Parties | George Gower v. George H. Stuart |
Submitted April 24, 1879
Error to Macomb. Submitted April 24. Decided April 25.
Judgment affirmed with costs.
O. S Burgess and Edgar Weeks for plaintiff in error. Forbearance for a debt is a consideration for a promise to pay it made by one who has the debtor's property in his hands Mallory v. Gillett, 21 N.Y. 412; Sage v Wilcox, 6 Conn. 81.
C. R. Canfield for defendant in error. A promise to pay another's debt is within the statute of frauds and must be in writing, Bresler v. Pendell, 12 Mich. 224; Waldo v. Simonson, 18 Mich. 345; Corkins v. Collins, 16 Mich. 478; where there is no evidence to support plaintiff's case, the jury should be instructed to find for defendant, Wisner v. Davenport, 5 Mich. 501; Grand Trunk Ry. Co. v. Nichol, 18 Mich. 170; Davis v. D. & M. R. R. Co., 20 Mich. 105; Scott v. Bush, 26 Mich. 418.
Stuart was sued on a verbal promise to pay the note of John Fitzpatrick and John Fitzpatrick, junior, owned by Gower, but now lost. Delay was made at his request, and he made some payments. The ground relied on for taking the case out of the statute is the alleged fact that he held Fitzpatrick's property in his control. It is not shown how he held it, although he is shown to have had it in his hands to a greater or less extent. Whatever extensions were made were made under no arrangement with the Fitzpatricks or either of them. The testimony was contradictory.
It was held below that no action would lie on such a promise. We think there is no ground for any other doctrine. Upon all of the evidence of the plaintiff it only appears that there was a verbal promise to pay the debt of another and not an independent contract for Stuart's own account.
The case of Calkins v. Chandler, 36 Mich. 320, is relied on to support the action; but in that case the creditor, the debtor, and the surety were all parties to the arrangement, and it was for their mutual convenience. Here there is nothing to show any desire or consent of either Fitzpatrick to any arrangement for the benefit of creditor or surety. The original debt was kept in force, and in this respect the case is within the principle of Baker v. Ingersoll, 39 Mich. 158.
We do not discover any line of decisions taking this case out of the plain letter and spirit of ...
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