Martin v. Harrington

• Decision Date: 01 December 1913
• Citation: 161 S.W. 275,174 Mo.App. 707
• Parties: EDWARD D. MARTIN, Appellant, v. W. R. HARRINGTON, Respondent
• Court: Kansas Court of Appeals

161 S.W. 275

174 Mo.App. 707

EDWARD D. MARTIN, Appellant, v. W. R. HARRINGTON, Respondent

Court of Appeals of Missouri, Kansas City

December 1, 1913

Appeal from Clinton Circuit Court.--Hon. A. D. Burns, Judge.

REVERSED AND REMANDED.

Daniel B. Gross and W. S. Herndon for appellant.

John A Cross for respondent.

OPINION

ELLISON P. J.

Plaintiff's action is to recover $ 663.70 on an account. Defendant demurred to the petition on the ground that it did not state a cause of action. The trial court sustained the demurrer and plaintiff appealed.

The ground of the demurrer was that the petition stated the original debt was that of another person which defendant had promised to pay and that being the verbal promise to pay the debt of another it was void under the Statute of Frauds (Sec 2783, R. S. 1909) providing that, "No action shall be brought to charge . . . any person upon any special promise to answer for the debt, default or miscarriage of another person . . . unless the agreement upon which the action shall be brought, or some note or memorandum thereof, shall be in writing," etc.

The parties have ignored the law that when an agreement involving the Statute of Frauds is alleged in a petition, it is not necessary that it should be alleged to be in writing, since it will be presumed the agreement stated is a legal one. There should have been an answer denying an agreement and then if the one proven is not in writing the statute may be invoked. A demurrer is not the way in which to obtain the benefit of the Statute of Frauds. [Phillips v Hardenburg, 181 Mo. 463, 472, 80 S.W. 891.] But as the same question will arise on a trial, we proceed to an examination of the matters involved.

It is alleged in the petition that J. C. Harrington being then indebted to plaintiff on the account defendant agreed with plaintiff that if the latter would "release and discharge J. C. Harrington from the payment of said debt he would pay said debt as his own." That plaintiff "accepted the agreement and did release the said debtor J. C. Harrington."

The case presents a vexed question arising from conflict in the decisions. It is of course, agreed by all that there must be a consideration to support the third party's promise. Ordinarily a consideration may be made up of either benefit to the promisor, or of harm to the promisee; but in cases under this statute it is stoutly maintained that the latter consideration does not avail as a support to a verbal promise to pay the debt of another, in the face of the statute requiring it to be in writing. The ruling is that, in order to make the statute inapplicable, the object of the promise must be some benefit to the promisor, the payment of the original debtor's debt being a mere incident. It is stated in these words in a leading case "The rule to be derived from the decisions seems to be this, that cases are not considered as coming within the statute, when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself; but where the object of the promise is to obtain the release of the person or property of the debtor, or other forbearance or benefit to him, it is within the statute." [Nelson v. Boynton, 3 Met. 396.] The same rule is announced in Cowenhoven v. Howell, 36 N.J.L. 323, the court emphasizing it in these words: "The consequence is, that agreements which will have the effect to discharge the debt of another, must be founded in a motive of interest, selfish in the promisor. The distinction is between a promise, the object of which is to promote the interest of another and one in which the the object is to promote the interest of the party making the promise. The former is within the operation of the statute. The latter is unaffected by it." Chancellor Kent divided the cases into three classes and this was his statement of the third class: "When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties;" (Leanord v. Vredenburgh, 8 Johns. 29). That statement has been questioned on the ground that it includes harm to the creditor as constituting a sufficient consideration. In Farley v. Cleveland, 4 Cow. 42, the statement of Chancellor Kent is approved, but it is restated (p. 439) in language which we take to be an intimation of the way in which the rule, as stated by the chancellor, should be interpreted; thus, "In all these cases founded upon a new and original consideration of benefit to the defendant, either from the plaintiff, or the original debtor, the subsisting liability of the debtor is no objection to the recovery." Thus, though the court approved of what Kent had said, it takes the pains to say that the consideration of harm to the creditor must be such character of harm as moves to or benefits the promisor. And this, we think is the interpretation put upon it in Nelson v. Boynton, supra, and Mallory v. Gillett, 21 N.Y. 412, 419. So we may regard the effect of the rule to be that the consideration which will withdraw the protection of the statute from the defendant's verbal promise is a consideration which moves to or is of benefit to him and when it is said that the consideration may consist of harm to the promisee plaintiff, it means a harm that has benefited the promissor. To say that any consideration will take a promise based thereon out of the statute is to make the statute useless. For if there is no consideration the promise is invalid without the statute. The statute is aimed at what were valid contracts; that is to say, it makes invalid contracts not in writing which would otherwise have been valid. So the St. Louis Court of Appeals has said that the main object of the verbal promisor must not be to pay the debt, but to benefit himself. [Walther v. Merrell, 6 Mo.App. 370.] And this, in effect, is the view of the...