Huntington v. Wellington

• Decision Date: 27 October 1863
• Citation: 12 Mich. 10
• Court: Michigan Supreme Court
• Parties: Joseph L. Huntington and another v. William Wellington

12 Mich. 10

Joseph L. Huntington and another v. William Wellington

Supreme Court of Michigan

October 27, 1863

Submitted on Briefs July 17, 1863,

Error to Eaton Circuit. The case is fully stated in the opinion.

Judgment reversed, and a new trial granted.

Barnes & Huntington and J. W. Longyear, for plaintiffs in error.

M. S Brackett and I. S. Crane, for defendant in error.

Manning J., Campbell, J. Martin, Ch. J. concurred with Campbell, J Christiancy, J. did not sit in this case.

OPINION

Manning J.:

Plaintiffs had a judgment against one Hall, which they sold to defendant, and received in payment two promissory notes against one Mott, and a mortgage given by one Ryan. The declaration, which is in assumpsit, states that defendant represented and warranted that the promissory notes were good and collectable, and that Mott was pecuniarily responsible and able to pay them; also that Ryan was pecuniarily responsible and able to pay the mortgage, and that the mortgaged premises were worth more than enough to pay the mortgage, and that they were unincumbered, etc. On the trial, parol evidence was offered to prove the representations and warranty. The evidence was objected to, and ruled out of the case by the court; because it was not in writing. We are referred to several statutory provisions in support of the decision of the court.

1st. Every special promise to answer for the debt, default, or misdoings of another person, is required to be in writing: Comp. L., § 3183.

The promise here referred to is a collateral promise, made simultaneously with, or previous to, the promise creating the debt guarantied by it; as when A trusts B, not upon B's promise only, but upon his promise and that of a third person, as C, who, at the same time promises to pay A, in case B fails to pay him. The statute has no reference to a separate, independent promise made subsequently to the creation of the debt, and for a new consideration. The two promises must have a simultaneous origin, and spring from the same root. In other words, they must be twin contracts. Where A trusts B, and C afterwards, for a new consideration moving from A, promises to pay what B is owing him, if he can not collect it of B, the undertaking is an original, independent contract, not within the statute. It is a guaranty of a pre-existing debt, and not a guaranty having its origin in the creation of the debt or duty guarantied, which is the promise meant by the statute. The cases do not all agree, but such it seems to me is the principle to be deduced from them. When the promise has its origin in the creation of the debt or duty, the consideration that supports one supports the other. When it does not so originate, but is made subsequently, the consideration of the debt or duty will not support the promise, but there must be a new consideration to give it effect, and the promise is then said to be an original, independent promise, not within the statute: Farley v. Cleveland, 4 Cow. 432; same case, 9 Cow. 639; Chapin v. Merrill, 4 Wend. 657; Meach v. Smith, 7 Wend. 315; note to Brown v. Curtis, 2 Conn. 553 (case 225); Thomas v. Dodge, 8 Mich. 51. There are cases within the statute that, at first view, seem to be the guaranty of a pre-existing debt, but in fact are not, but of a new promise. As where a creditor agrees with his debtor to give him time in consideration of security for payment at a future day. Such promise must be in writing. For the undertaking of the surety is the performance of the contract granting the extension, and not the payment of the original debt, which is merged in the new promise, and made the basis of a new debt to be paid at a future day.

2d. No action shall be brought to charge any person, upon or by reason of any favorable representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, etc.: Comp. L., § 3186. The representations and assurances here spoken of, are not representations or assurances made by a party to a contract, but by a third person, knowing them to be false, and making them for corrupt and dishonest purposes, to the injury of another. If one seeks information of another, with a view to some future action, and makes such information the basis of his action, and thereby sustains a loss, the statute will not permit him to allege the deception practiced on him by his informant, unless the information he acted on was in writing.

3d. A warranty or representation that real estate is unincumbered, is not the creation, granting, assigning, surrendering, or declaring of any estate or interest in land, or of a trust or power over or concerning land, which the statute requires to be in writing: Comp. L., § 3177. It is the warranty or representation of a fact, and not the creation or granting of a title or interest in land.

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