Waldo v. Simonson

• Decision Date: 04 May 1869
• Citation: 18 Mich. 345
• Court: Michigan Supreme Court
• Parties: Charles C. Waldo v. James B. Simonson

18 Mich. 345

Charles C. Waldo v. James B. Simonson

Supreme Court of Michigan

May 4, 1869

Heard April 29, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Oakland circuit.

This was an action brought to recover a certain sum of money alleged to have been promised to plaintiff by defendant. The plaintiff declared specially, and on the common counts.

On the trial, plaintiff testified "that in 1866 he and defendant were engaged in buying wool in Holly; that in July of that year a man calling himself Walker came to Holly for the purpose of buying wool, and made arrangements with the defendants to purchase wool for him. While he was there he had a draft for $ 5,000, purporting to have been drawn by E. Wendell, on the First National bank of Detroit, to the order of Thomas McGraw & Co., which draft was indorsed by Thomas McGraw & Co.; that said Walker wished plaintiff to go to the bank in Holly, and help him get the money. Plaintiff went to the bank with said Walker, but they would not let Walker have money except on plaintiff's indorsement. Plaintiff then, at said Walker's request, indorsed said draft, in the bank, and they drew $ 900 on it.

That after this, and on the same day, witness aided Walker in buying wool with said money, and they bought about seven hundred pounds, at a cost of about fifty-eight cents per pound; and they paid for other lots purchased by defendant, and the same was placed with the wool defendants had purchased for said Walker, in their warehouse. On the day following it was discovered that the person calling himself Walker had run away, and Charles C. Waldo and the plaintiff went over to the bank and had a talk with the banker, Latourette, about it, and it was agreed, as between themselves, that they should have no law about it. Plaintiff and C. C. Waldo agreed with said Latourette that said draft need not be protested; they would pay it as soon as the wool was sold. Waldo then agreed to pay the plaintiff the amount of money that had been put into the wool, that came from the money got on the draft. Plaintiff had expected to attach the wool on his own account, but upon Waldo's making that agreement to pay him, he agreed not to do so, and they agreed between themselves that both their claims should be put together, and there should be but one attachment suit about it.

That the money referred to was the amount of plaintiff's money that had gone into that wool. Money on account of the draft, $ 550.00. He assented to this, and rested easy until towards night. While at the bank Latourette, the banker, said the draft was a base forgery. Waldo said to him, "you hold onto the draft a few days, till after the wool is sold, and we will come in and pay the draft." The draft was then in Latourette's hands. He said to his clerk, "lay it away. You need not protest it. These gentlemen will come in and pay it without expense."

After that, witness had a conversation with defendant, A. P. Waldo, and agreed that they would come to Pontiac to see about it and secure themselves. We agreed that we would have but one suit about it, if necessary to commence a suit. I went away for a short time, and when I returned I saw the Waldos, and they said they had attached the wool for both our claims.

Witness further testified: "Since that I have had several conversations with them. A. P. Waldo told me he had sold the wool, and C. C. Waldo bought it at forty-eight cents. A. P. Waldo said it was right I should have my pay; that his father had the wool, and ought to pay for it. He said he and his father were in partnership, and intended to divide the profits." Witness said he paid the $ 900 on the draft to Latourette, eleven days after he had indorsed it. Witness understood that, including this wool that his money paid for, there was purchased, in all, by the Waldos, on account of Walker, about 3,300 pounds, and that Walker had not furnished any of the money for the purchase. Witness said after the wool was sold, he had a conversation with C. C. Waldo, and made a proposition to him to settle up, and C. C. Waldo said he wanted to see A. P. Waldo, as he was equally interested, and he made an appointment to meet witness. Walker was subsequently arrested, and his name proved to be Wolcott. No writing passed between the parties relative to this matter.

The plaintiff also testified, "that after the attachment, and before the sale, defendant, C. C. Waldo, came to plaintiff and told him he could get forty-eight cents per pound for the wool, and asked him if he was willing to take that for his share or interest in the wool, and the plaintiff told him he was."

The defendants introduced testimony tending to contradict said agreement to pay plaintiff any part of the money received on sale of said wool.

On plaintiff's request, the court charged the jury:

1. That the agreement not to prosecute a claim when due is a sufficient consideration for a promise.

2. If the defendants, in consideration that the plaintiff would omit to take legal proceedings on his own behalf, to secure the amount paid on the forged draft, or would omit to disturb them in the possession of the wool, if this was of benefit to said defendants, it is an original promise of the defendants, and not within the statute of frauds.

3. That a transfer of the claim of Simonson to defendants, of the amount of his claim against Walker, or Wolcott, equal to the money put in the wool by him, or from the draft, would be a good consideration for a promise, and a promise to pay that amount, based upon such considerations, would constitute an original undertaking, and is not a collateral promise.

After declining to charge certain requests of the defendant, the circuit judge further said that, if the jury should find, from the evidence, that the defendants promised to pay the said plaintiff the amount of money due from said Wolcott, which went into the wool, from that obtained at Latourette's bank, upon the promise made by said plaintiff to withhold legal proceedings for the enforcement of his claim against Wolcott, or not to attach the wool then in defendant's possession, and that such withholding legal proceedings would be of benefit to said defendants, then the promise would not be within the statute, and need not be in writing; but if the jury should find that the promise was a mere promise to pay the debt of Wolcott, without any consideration moving between the parties to this suit, of benefit or advantage to said defendants, then the contract would be within the statute, and void, unless in writing, and that the parol agreement not to attach said wool was a sufficient consideration for a promise.

The jury found a verdict for plaintiff.

Judgment of the circuit court reversed, with costs, and a new trial ordered.

Baldwin & Look, for plaintiff in error:

1. The assumed contract in this case, if any, was one to pay the debt of another. Simonson testified "that Waldo agreed to pay him the amount of money that had been put into the wool, that came from the money got on the draft."

This, in connection with all that was said, does not answer any of the requirements of the statute of frauds: 2 Comp. Laws, 944.

The testimony about his not commencing an attachment suit on account of it, amounted to nothing, as Waldo received no consideration from Simonson, and Simonson parted with nothing. He retained the draft in his own hands. He was the person liable, and there was no liability in any manner attaching to Waldo; and, at the time this conversation was had, Wolcott was not indebted to Simonson, and he (Simonson) had paid nothing on account of the draft: Brown v. Hazen, 11 Mich. 219.

This case comes clearly within the statute of frauds. It was a parol promise to pay the debt of Wolcott. The statute was intended for some beneficial purpose, and if it can be varied and held for naught in this case, it would require but very little ingenuity to entirely nullify its provisions: 2 Comp. Laws, 944; Mallory v. Gillett, 21 N. Y., 411; Brown v. Hazen, 11 Mich. 219; Jackson v. Raynor, 12 Johns. 391; Simpson v. Patten, 4 Id. 422; Rogers v. Rogers, 6 Jones, N. C., 300; Westheimer v. Peacock, 2 Green Iowa, 528; Hull v. Soule, 11 Mich. 494; Larson v. Wyman, 14 Wend. 246; Payne v. Baldwin, 14 Barb. 570; Eddy v. Roberts, 17 Ill. 505; Curtis v. Brown, 5 Cush. 491; Watson v. Randall, 20 Wend. 201; Nelson v. Boynton, 3 Met. 396; Stone v. Drinker, 2 E. D. Smith, 401; Bresler v. Pendel, 12 Mich. 224; 11 Id. 494.

The rule is well settled by the whole current of authorities "that while the old debt remains, the new contract can not be substituted, but is only a collateral one." And "if the liability of the original debtor continue, the promise of another to pay his debt, should be in writing:" Shoemaker v. King, 40 Penn. St., 107; Rogers v. Brooks, 6 Jones N. C. Law, 303; Westheimer v. Peacock, 2 Green Iowa, 521; Curtis v. Brown, 5 Cush. 492; Kingsley v. Balcome, 5 Barb. 139; Brady v....