Stewart v. Jerome

• Decision Date: 11 July 1888
• Citation: 38 N.W. 895,71 Mich. 201
• Court: Michigan Supreme Court
• Parties: STEWART ET AL. v. JEROME.

38 N.W. 895

71 Mich. 201

STEWART ET AL. v. JEROME.

Supreme Court of Michigan

July 11, 1888

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Assumpsit by Daniel Stewart and Andrew T. Stewart partners, doing business as Daniel Stewart & Son, against George Jerome, upon an oral promise by defendant to pay the debt of one Joseph H. Morris. There was judgment for plaintiffs, and defendant brings error.

Larned & Larned, (D. A. Straker, of counsel,) for appellees.

CHAMPLIN, J.

The suit in this case was commenced by declaration which consisted of the common counts in assumpsit. The defendant demanded a bill of particulars, and one was served which consisted of several items from May 2 to June 5, 1884 of oats, amounting to $395.66, and a statement that the goods were sold and delivered to Joseph H. Morris for feed for his livery horses at his stables on Michigan Grand avenue, Detroit; that said Morris owed defendant $10,000, and to secure the same defendant held a chattel mortgage on Morris' horses, harnesses, and other property in said stables, dated June 4, 1884; that said mortgage included no goods or stock of Morris acquired by him after the date thereof, and that Morris purchased and had in his stables stock, goods, and property not covered by said mortgage to the amount of $4,000; and on or about June 20, 1884, said Morris absconded with intent to defraud his creditors; that said Jerome took possession of all of said horses, coup�s, carriages, harnesses, and other property, including stock and property not included in his mortgage, and more than sufficient to satisfy plaintiffs' said demand, which, with the mortgaged property, was liable to attachment; that of the above written account, all being past due and unpaid, $200 of the oats were at the time Morris absconded then in the stables, and not fed out, and were purchased fraudulently, and were repleviable by plaintiffs, on the ground that they were obtained by fraud by said Morris, and said plaintiffs intended to proceed to replevin said $200 worth of oats, and intended to proceed by attachment against the residue of the property taken by defendant to satisfy his mortgage, and not covered by it; and the defendant well knowing all the above premises, and in order to prevent said plaintiffs from enforcing payment of their just debt and lien by attachment and replevin, did promise and agree with said plaintiffs that if they would forbear to enforce their said claims he, said defendant, would assume and pay said debt of said plaintiffs, and, relying on said promises of defendant, did so forbear; and took no steps to replevin or attach or attempt collection of their debt, and have hitherto forborne until the commencement of this suit, relying on his, defendant's, promise to pay said debt. The defendant pleaded the general issue. Upon the trial of the cause the plaintiffs, against objections made by counsel for defendant that the proof offered was inadmissible under the pleadings, introduced evidence tending to prove the indebtedness of Morris to plaintiffs, the execution of the chattel mortgage by Morris to defendant, the departure of Morris, and the possession taken by defendant of the whole stock and property in the stable, and the promise of the defendant. The plaintiffs are copartners, composed of Daniel Stewart, the father, and his son, Andrew T. As soon as Daniel Stewart had learned that Morris had left the city, he went to the stables on Michigan Grand avenue, and found defendant's servants in possession, and one of them informed him that defendant wished to see him immediately, and took him in a buggy to the office of defendant, where he had a conversation with defendant as follows: "State what that conversation was fully. Answer. He asked me how much Mr. Morris owed me, and I told him he owed me $395.66, at the same time handing him the bill. He looked at it a moment, and turned around to me and asked me what I was going to do, and I told him I was going to replevin my oats and attach other property to get my money; that I could not afford to lose it. Question. Now, at that time, what was the fact of your intending to attach any particular property in the stable that he had recently been purchasing? A. Mr. Morris offered me, a few days before he left, a span of large bay mares, and offered me them cheap, tried to persuade me very much to buy them, and also a two-seated wagon that Morris told me was not included and Jerome had no business with. Q. Then you intended to attach what? These horses and the wagon, you say, and the open account? A. Yes, sir. Q. Now, Mr. Jerome asked you what you were going to do, and you told him you were going to replevin your oats, and attach some other property, and get your debt. What did he say to you? A. Be quiet, do nothing, and I will pay you; that is it exactly. Q. What else did he say? A. That my bill was similar to a supply man on a railroad,-when the railroad broke down the supply man had to be paid whoever was paid, and he would pay me. Q. What did you say to that? A. Well, I agreed to it." He further testified that he did not replevin or attach because he relied upon Mr. Jerome paying him, and was satisfied he would. That he reported to his son the interview with Mr. Jerome, and he was not satisfied with it; and they both went the second day after to see Mr. Jerome, when nearly the same conversation was had as before, Mr. Jerome agreeing to pay them if they "stood quiet," and would wait six months, to which plaintiffs agreed, at the end of which time they called upon him, when he offered $200 in cash to settle the bill, or, if they would wait 10 months, he would pay the whole face of it. The plaintiffs then agreed to wait 10 months, and directed an entry to be made on their books so they would know when the 10 months was up. At the end of this time plaintiffs again called upon defendant for payment, and he was not yet ready; "complained that he had sold his business to Edmunds, but got very little or no money, and he was scarce of money." Later they called again, and the plaintiff Daniel Stewart testified to the conversation that then occurred as follows: "My son went to him and asked him what was the reason he would not pay us. Why didn't you let us replevin, and attach at once, and get our money? Jerome got a little wrathy, and he said that unless he was willing to pay the bill we could not get it any more than we could get the paint off the wall." The defendant introduced no testimony, and the plaintiffs recovered.

The defense to the action is placed upon two grounds First. That the promise of defendant is void under the statute which enacts that every special promise to answer for the debt, default, or misdoings of another person shall be void unless some note or memorandum thereof be in writing, and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized. Second. If not void, no recovery can be had upon such promise under the common counts in assumpsit. This clause of the statute of frauds has often come before this court for consideration. In Corkins v. Collins, 16 Mich. 478, the plaintiff sued Collins on a verbal promise to pay a board bill and money lent, due from one James Sykes. The consideration was the release of certain trunks supposed to be held for the debt. The defense was the statute of frauds. Mr. Justice CAMPBELL said: "Such a release of a valid claim would be a sufficient consideration for a written promise, for, if a consideration passes from the promisee, it usually makes no difference to whom it passes. *** It is not pretended that an extension of time, or any other agreement involving no release of property or extinguishment of liability, if made in favor of the principal debtor, would authorize the verbal promise of a third person to pay the debt to be enforced. But a distinction is sought to be drawn where property is released or given up to the debtor. There is no obvious reason for any such distinction. The law puts all valuable considerations on the same footing. *** When by the release of property from a lien the party promising to pay the debt is enabled to apply it to his own benefit, so that the release inures to his own advantage, it is quite easy to see that a promise to pay the debt in order to obtain the release may be properly regarded as made on his own behalf, and not on the behalf of the original debtor; and any possible advantage to the latter is merely incidental, and is not the thing bargained for. That promise is therefore in no proper sense a promise to answer for anything but the promisor's own responsibility, and need not be in writing." In Calkins v. Chandler, 36 Mich. 320, it was held that an agreement to extend the time of payment and forbear to sue a third person, who was plaintiff's debtor, was a sufficient consideration for defendants' promise to pay. And this was because the promise of defendants to pay the debt of such third person was at the same time, when paid, to apply on an indebtedness that was to...