Opinion
June Term, 1859.
Where a father promised the creditor of his son, that if he would go to a distant place and become the bail of his son, who was in a close prison upon a criminal charge, so as to release him from his imprisonment, he would pay the debt which the son owed him, it was Held, that, notwithstanding the performance of the service, yet, as the debt against the son was still in force, it was a contract within the statute of frauds, and therefore void.
Where a father promised one, that if he would go to the assistance of his son, who was in prison on a criminal charge, he would pay him for his expenses and services, and would pay him for having gone to his son's assistance previously, it was Held doubtful whether, as the two services together formed the consideration of the promise, as to the former services, it was within the statute, but that certainly, no recovery could be had without a previous demand.
ACTION of ASSUMPSIT, tried before HEATH, J., at the last Spring Term of Columbus Superior Court.
Moore and Kelly, for the plaintiff.
Graham, J.H. Bryan and Strange, for the defendant.
The plaintiff declared on a special contract in two counts:
1st. Upon a promise of the defendant, that if the plaintiff would go to Wilmington and become the bail of the defendant's son, one Daniel W. Rogers, who was imprisoned there upon a criminal charge, the plaintiff should lose nothing by what he had done, or should do, thereafter, for the defendant's said son.
2ndly. Upon a promise of defendant, that if plaintiff would go to Wilmington, and become the bail of the defendant's son, the defendant would pay to the plaintiff all the debts which his said son owed him.
It was in evidence, that in the month of February, 1854, Daniel W. Rogers, the son of the defendant, was imprisoned in the jail of New-Hanover county upon a charge of forgery, and that the plaintiff, at the request and on behalf of the said D. W. Rogers, left his home in Robeson county and went to Wilmington, and after remaining there a day or two, at the request of D. W. Rogers, proceeded to the residence of the defendant in Wake county; that in passing through Raleigh he met with one Buffalow, who expressed a willingness to become the bail of D. W. Rogers, if the defendant would give him a bond of indemnity; that a bond was prepared accordingly, which plaintiff took with him to defendant's house, where, in conversation about the matter, plaintiff expressed a fear that he should lose a considerable sum which D. W. Rogers owed him; to which the defendant replied, that if the plaintiff would go to Wilmington with Buffalow, and become the bail of his son, he should lose nothing by what he had done, or might do for him; that on the next morning there was another conversation, in which the plaintiff requested the defendant to put his promise in writing, to which the defendant replied, that it was unnecessary, for his word was his bond; and he then called upon the witness to take notice; that "if the plaintiff would go to Wilmington with Buffalow and become the bail of his son Daniel, he should lose nothing by what he had done, or might do for him, and that all the debts which Daniel owed him should be paid;" that soon afterwards, the plaintiff and Buffalow went to Wilmington and became the bail of the said Daniel Rogers, in the criminal case, but there having been certain writs against him for debt in the meantime put into the hands of the sheriff, he was still detained in prison; that soon afterwards the defendant sent an agent, who, acting under a power of attorney, made by plaintiff, had the debts compromised and settled, so that the said Daniel was discharged without giving any further bail; that the said Daniel immediately left the State, and has not since that time returned to it.
It was further in evidence that some months afterwards the plaintiff went to Wake county, and demanded from defendant payment of the amounts owed him by D. W. Rogers, to which defendant replied, he believed his son would pay his debts, and that it was time enough for plaintiff to talk about his paying, when Daniel failed to pay; to this plaintiff rejoined, that he had not looked to D. W. Rogers for the debts due him since the defendant promised to pay the amount, and added, that if he had not relied on that promise, he would have done as others had done; that the defendant then said, if he was not already bound, he should not be; that some short time afterwards, defendant asked the witness, what plaintiff meant by this expression in relation to the course he would have pursued; to which the witness replied, he supposed plaintiff meant that he would have brought suit as others did; to this defendant rejoined, he supposed that was his meaning. The debt of D. W. Rogers to the plaintiff was then proved, and it was further proved, that defendant's agent had paid plaintiff forty or fifty dollars on account of his expenses and services in going to Wilmington.
The Court, in reply to a call for instructions, charged the jury, that according to the evidence, the plaintiff was not entitled to recover for the debt owed by D. W. Rogers to him as demanded in the second count of the declaration. His Honor further charged, that for his services and expenses in going to Wilmington after being requested so to do, he was entitled to recover, but for the services previously rendered, and the expenses incurred at the request of D. W. Rogers, the defendant was not liable. His Honor also adverted to the evidence going to show that forty or fifty dollars had been paid plaintiff on account of services and expenses on the trip to Wilmington, and instructed them, that if they believed that was a fair compensation for such services and expenses, the defendant would be entitled to their verdict. The plaintiff's counsel excepted to these instructions. The jury found for the dedefendant [defendant], and from a judgment in his favor, plaintiff appealed to this Court.
That part of the promise of the defendant, by which he undertook to pay the debts of his son was clearly within the statute of frauds, and his Honor was right in holding that the plaintiff could not recover the amount of them, because the promise was not evidenced in writing. The son remained a debtor to the plaintiff, as much after the defendant's promise was made, as he was before, and the promise could have no other effect than to make the defendant answerable for the debts of his son. We are entirely unable to distinguish the case from that of Britton v. Thrailkill, 5 Jones' Rep. 329, which has been so recently decided in this Court, as to make it unnecessary to refer to any other. That case, like the present, was a suit upon a promise by a father to pay the debts of his son. It appeared upon the trial, that the son was making preparation to leave the State, and the defendant, his father, was desirous to facilitate and hasten his departure. The plaintiff, having debts against the son, was about to take out a bail-warrant against him, when the father promised that if the plaintiff would not do so, but would permit his so to leave the State, he would pay all the debts which his son owed him. — The plaintiff did forbear, and upon the father's failing to perform his promise, the suit was brought to enforce it. A recovery was resisted upon the ground that the promise, not being in writing, was within the statute of frauds. This Court held the objection to be good, saying that the "promise sued on, was, in so many words, a promise to pay the debt of another, which was superadded to the original promise, which remained in full force."
There are many cases in which parol promises, if executed, would, incidentally have discharged the debts of another person, and which have yet been decided not to have come within the operation of the statute. These will be found arranged and commented upon in the work referred to by the plaintiff's counsel. See 2 Parsons on Contracts, part 2nd, chap. 4, p. 284. The principles upon which some of these cases have been held to be excepted out of the statute, are so refined as to be almost unfit for practical use. They have so narrowed the grounds upon which the statute was intended to be based, as to destroy, to some extent, its beneficial effect. But, whether they are to be adhered to or not, we believe that no case has, as yet, gone the length of holding that a parol promise to pay the debt of another, is binding, where the debt remains in full force against the original debtor, notwithstanding the promise. In such a case, no ingenuity of construction can make the promise any thing else than one to be answerable for the debt of another, which is directly and plainly within both the words and intent of the statute.
The other part of the defendant's promise, by which he engaged to pay the plaintiff's expenses in going from the defendant's residence to Wilmington, and such as he might incur in releasing his son from jail, and then returning to his own home in Robeson county, was clearly binding upon the defendant, and his agent accordingly paid them. The expenses of the plaintiff, in his trip to Wilmington were incurred at the request of the defendant's son, and it is contended for the defendant that his promise to pay them stands upon the same footing with that to pay the debts of his son. On the other hand, it is insisted for the plaintiff, that all the expenses of both trips to Wilmington, formed one entire consideration for the defendant's promise, just as if he had agreed to pay a certain sum of money of the same amount with the entire expenses incurred by the plaintiff in his efforts to liberate the defendant's son. It is unnecessary for us to decide which view is correct, for supposing that the plaintiff could recover for the expenses sustained by him antecedent to the defendant's promise, we think that he ought to have given the defendant notice of such claim, and the amount, so that he might have had an opportunity of paying it, in order to avoid the trouble and expenses of a law suit. Indeed the defendant's agent did pay the plaintiff forty or fifty dollars on account of his expenses and services in going to Wilmington, and it may be, for all that we can see, that the expenses of both trips were covered by that amount. At all events, we are of opinion that the defendant ought to have had notice, before he was sued, what sum, if any, beyond the amount paid, was claimed an account of the expenses of the first trip.
PER CURIAM, The judgment must be affirmed.