Haskell v. Tukesbury

• Decision Date: 05 April 1899
• Citation: 92 Me. 551,43 A. 500
• Parties: HASKELL et al. v. TUKESBURY.
• Court: Maine Supreme Court

43 A. 500

92 Me. 551

HASKELL et al.

v. TUKESBURY.

Supreme Judicial Court of Maine.

April 5, 1899.

(Official.)

Report from superior court, Cumberland county.

Action by Benjamin F. Haskell and another against Charles C. Tukesbury. Case reported, and judgment for plaintiffs.

This case was certified to the law court under Rev. St. c. 77, § 43, by the justice of the superior court for Cumberland county. It was an action of assumpsit, originating in the municipal court for the city of Portland, to recover against an alleged guarantor $41.50 for clothing sold to F. H. Dyer. The declaration is as follows:

"In a plea of the case, for that the plaintiffs sold and delivered certain goods, according to the account annexed, to one F. H. Dyer, formerly of Portland, on or about the 20th day and 18th day of July, A. D. 1896; that on or about the 7th day of November, A. D. 1896, an effort was made to collect said account, whereupon, and upon the said 7th day of November, the defendant, in consideration of forbearance from enforcing the collection of said claim and of giving more time to the said Dyer in which to pay said account, guarantied to pay said account, with interest, to the said plaintiffs, by a written guaranty delivered to the plaintiffs, through their agent, of the following tenor, to wit:

"'Portland Theater, Nov. 7, '96.

"'Friend Geo. (meaning George Goold, the agent of the plaintiffs):

"'Pop Dyer (meaning F. H. Dyer) was up to see me about a bill that he owes your concern (meaning the plaintiffs). He is having a "fit."

"'If they (meaning the plaintiffs) will give him time, I will see that the bill is paid, with int. (meaning interest). Now that McKinley is elected, he has got a sure thing, and I know it.

"'Yours, C. C. Tukesbury.'

"And the plaintiffs aver that on account of said guaranty they delayed collecting said claim, giving said Dyer more time in which to pay the same, but that the said Dyer has never paid said account, and that since the giving of said guaranty the said Dyer has left the state, and that his whereabouts are unknown to the plaintiffs; that the plaintiffs have notified the said defendant, since the giving of the said guaranty, of the failure of the said Dyer to pay the said account, and of the departure of the said Dyer from the state, and have frequently requested the said defendant to pay the said account according to the terms of his said guaranty, but he has refused to do so; whereby, and in consideration of the facts above stated, at said Portland, on the day of the purchase of this writ, the said defendant, being indebted to the plaintiffs in the sum of forty-three dollars and fifty-seven cents, according to the account annexed, then and there promised the plaintiffs to pay them said sum on demand:

"'Portland, Maine, May 27th, 1897.

"'F. H. Dyer, to Haskell & Jones, Dr.

1896.

July 18.

to one suit

$35 00

20.

"two negl. shairts

6 50

Interset to date

2 07

$43 57'"

Plea, general issue, and brief statement that the statute of frauds is a bar to the action.

Argued before EMERY, HASKELL, WHITEHOUSE, STROUT, SAVAGE, and FOGLER, JJ.

Calvin E. Woodside, for plaintiffs.

D. A. Meaner, for defendant.

FOGLER, J. Assumpsit upon a writing signed by the defendant of the following tenor:

"Portland Theater, Nov. 7, '96. "Friend Geo.:

"Pop Dyer was up to see me about a bill that he owes your concern. He is having a 'fit.' If they will give him time, I will see that the bill is paid, with interest. Now that McKinley is elected, he has got a sure thing, and I know it.

"Yours, C. C. Tukesbury."

The defendant pleads the general issue, and, by brief statement, the statute of frauds. The case comes to this court from the superior court of the county of Cumberland on report.

Dyer owed the plaintiff for merchandise described in the writ. After unsuccessful efforts to collect the debt of Dyer, the plaintiffs placed the bill in the hands of George M. Goold, their salesman and agent, for collection. Mr. Goold had a conversation with the defendant, in which the defendant said he thought Dyer was all right, and would pay the bill if they would give him time. In a subsequent conversation, Mr. Goold asked the defendant if he would not fix it so the concern would not sue Dyer. Thereupon the defendant wrote and signed the writing in suit, and sent it to Goold, who handed it to the plaintiffs' bookkeeper. The plaintiffs brought no suit against Dyer, and made no further effort to collect of him, and May 27, 1897, Dyer having left town, after demanding payment of the defendant, commenced this suit.

The plaintiffs seek to charge the defendant for the debt of another, and the question is whether the writing declared on is sufficient to satisfy the statute of frauds. Rev. St. p. 2, c. 111, § 1, provides that "no action shall be maintained to charge any person upon any special promise to answer for the debt, default or misdoings of another unless the promise, contract or agreement, on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise."

The defendant contends that the action is not maintainable, because, as he says, no consideration is expressed in the writing declared upon and no sufficient consideration is proved. The statute does not require that the consideration be expressed in the writing, but expressly provides that it "may be proved otherwise."

The consideration may be proved by parol. Williams v. Robinson, 73 Me. 186. The statute of frauds, even before the amendment expressly declaring it unnecessary, did not require the consideration to be recited in the note or memorandum signed by the party to be charged, but it might be proved by parol. Cummings v. Dennett, 26 Me. 397; Gillighan v. Boardman, 29 Me. 79; Williams v. Robinson, supra.

A promise to forbear and give further time for the payment of a debt, though no definite time be named, if followed by actual forbearance for a reasonable time, is a valid and sufficient consideration for a promise guarantying the payment. Moore v. McKenney, 83 Me. 80, 21 Atl. 749.

In the case at bar the defendant in writing promised to see the debt of Dyer paid, with interest, if the plaintiffs would give him time. Hiram L. Jones, one of the plaintiffs, testified, and his testimony is uncontradicted, that, on the receipt of the writing declared upon he notified the defendant that the proposition of the defendant was accepted, and it appears that the plaintiffs did actually forbear to enforce payment of the debt from November 7, 1896, to May 27, 1897, when the present suit was commenced. We are of opinion that the plaintiffs agreed to forbear, and did forbear, suit for a reasonable time, and that a sufficient consideration for the defendant's promise is proved.

The defendant further contends that the writing declared on is not sufficient to satisfy the requirements of the statute, inasmuch as the plaintiffs are not named or referred to therein; that the names of the parties are not sufficiently expressed; that the subject-matter of the agreement is not sufficiently described; and that parol testimony is not admissible to supply such omissions.

George M. Goold was the agent of the plaintiffs in the transaction under consideration, and the fact was known to the defendant. The writing states that Dyer had been to see the defendant about "a bill that he owes your concern," and states, "If they will give him time, I will see that the bill is paid"; showing that the defendant well understood that he made the proposition contained in the writing, not to Goold individually, nor to an undisclosed principal, but to the plaintiffs, disclosed principals. "Contracts of guaranty differ from other ordinary simple contracts only in the nature of the evidence required to establish their validity. The statute requires every special promise to answer for the debt, default, or miscarriage of another to be in writing, subscribed by the party to be charged thereby, and no parol evidence will be allowed as a substitute for these requirements of the statute. But, in other...