Shively et al. v. Black

• Decision Date: 14 May 1863
• Citation: 45 Pa. 345
• Court: Pennsylvania Supreme Court
• Parties: Shively <I>et al. versus</I> Black.

Page 345

45 Pa. 345

Shively et al. versus Black.

Supreme Court of Pennsylvania.

May 14, 1863.

ERROR to the Common Pleas of Perry county.

Junkin & McIntyre, for plaintiff in error.

William Sponsler, for defendant in error.

The opinion of the court was delivered, May 14th 1863, by

READ, J.

For a period of more than a century and a quarter from the passage of the Statute of Frauds, 29 Charles 2, c. 3, as Lord Eldon, a very great authority in the law, said, "We had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear on the face of the writing." In the year 1804, in the case of Wain v. Warlters, 5 East 10, the Court of King's Bench decided, for the first time, that the consideration must be expressed in the written paper, or agreement. This decision, although not satisfactory, finally became the settled law of England, with a qualification, which is well expressed by Lord Campbell in Powers v. Fowler, 4 E. & B. 516, decided in 1855: "The agreement," said his lordship, "includes not merely the promise or undertaking, but the consideration for that promise, without which it is not an agreement; therefore the consideration must be disclosed in the writing. But if it appears by the express terms, or by necessary inference from the terms of the writing, that the defendant's promise is upon the terms of the plaintiff's performing some condition, the performance of which will be a benefit to the defendant or a detriment to the plaintiff, then it appears in the writing that there is a consideration, and on the performance of the condition the plaintiff may sue." Wightman, J., said: "All the cases agree that it is enough if the consideration can fairly be collected from the terms of the writing." The construction placed upon the 4th section was not extended to the 17th section, under which it was held that the consideration need not be expressed.

In Sears v. Brink, 3 Johns. 210, the Supreme Court of New York, in 1808, following the Court of King's Bench, adopted the construction given to the statute in Wain v. Warlters, without any extended discussion of the question; and this has been made a part of the statute law of the state: 2 R. S. 135, § 8; 10 Paige 386.

So inconvenient and unjust was the rule thus established by judicial interpretation found, that by the 3d section of the Mercantile Law Amendment Act, 1856, 19 & 20 Vict., c. 97, it was enacted that "no special promise to be made by any person after the passing of this act to answer for the debt, default, or miscarriage of another person being in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully...