Majority
p. 418Gold and Sill against Phillips and another. Gold against The Same. NEW YORK, Oct. 1813.
Headnote
W. sold a farm to P. and in part of the consideration money, P. gave liis bond, binding himself to pay certain debts and judgments against W., and, also, a debt due from W, to G and S. attorneys, for costs; and P. wrote to G. & S. that by arrangement with W he, P., was to be accountable to G. & S. for the debt due from. W.In an action of assumpsit I>y G. & S. against P., it was held that the assumption of P. was valid, and not within the statute of frauds, being founded on a distinct consideration t but that the promise being to G. & S. jointly, did not apply to debts due from AV. to either of them, individually.
THESE were actions of assumpsit, brought by the plaintiffs in the first suit, to recover their fees as attorneys and counsellors in the supreme court, and by the plaintiff, in the second, for his fees as solicitor and counsel in the court of chancery.
The cause was tried at the Oneida circuit, on the 3d June, 1813, before Mr. Justice Yales.
The plaintiffs proved a retainer by Aaron Wood, and the performance of their services as stated in- the bills of costs Avhich were produced; the charges in which Avere objected to by the defendants’ counsel. It was proved, by an attorney, who was present, and prepared the writings, that Aaron Wood sold and conveyed a farm to the defendants, on the 7th November, 1810, for 4,210 dollars, for the payment of which, a bond and mortgage on the premises were given by the defendants to Wood ; the time and manner of the payment being specified in the bond. The witness stated that a certain sum, with interest, was to be paid to Wood at a specified time, and the residue was made up of different debts and judgments against him, specified in the bond; and which the defendants were bound to pay, and to keep the said Wood harmless and indemnified from the same: and the witness believed that certain demands of the plaintiffs against Wood for costs were also to be satisfied by the defendants; and that the amount, as he thought, was specified in the bonds, and he had understood that some, or all, the costs were in chancery.
It was proved that the bond of the defendants was afterwards cancelled on the defendants’ giving up the farm to one Thaddeus Wood, who entered into an agreement with them to pay the said debts, and also to pay the costs of the plaintiffs which the defendants had assumed to pay.
The plaintiffs, also, gave in evidence the following letter addressed to them by the defendants :
“ November 7, 1810.
“ Gentlemen,
“ An arrangement has been made between us and Aaron Wood,
p. 419contended that the promise of the defendants was not within the statute of frauds ; but fell within the third class of cases mentioned by the Chief Justice, in the case of Leonard v. Vredenbergh;[1] the principle also laid down in Tomlin-son v. Gill[2] was in point. The conveyance of the farm by Aaron Wood, the original debtor, to the defendants, and the allowanee of the demand of the plaintiffs against him, as part of the purchase-money agreed to be paid by the defendants, made a new and distinct consideration to support the promise of the defendants, and on which it was founded, so as to take it out of the operation of the statute. A formal discharge of the original debt is not necessary; a distinct benefit is sufficient to support the promise. It was not necessary that the consideration or promise should be in writing. But even if it were, enough appears to repel that objection. The res gesta, the whole agreement, is stated in the bond given to Aaron Wood. Every requisite guard against fraud exists in this case. said that he did not deny the general principle laid down; but he contended that it did not apply to this case. In Skelton v. Brewster,[3] there was a discharge of the original debt, which, as well as the depositing the goods in the hands of the defendant, constituted the consideration for the promise, go in the case in 1 Roll. Abr. 29. there was a discharge of the original promise, which was the consideration of the other promise; and in Reed v. Nash,[4] there was an acceptance of the defendant in the place of the original debtor. Again, the agreement, that is, the consideration, as well as the promise, must be in writing.[5] The plaintiffs cannot go out of the writing they have produced, to seek the consideration in another writing, in the possession and under the control of a third person; and who, it appears, had cancelled it. It ought to have been stated in the same writing, and the plaintiffs ought to have accepted the defendants as their debtors, previous to the discharge of the bond;
by which we are to be accountable to you for the balance due from him to you on account.
Verdicts were taken by consent for the plaintiffs, in both ' • • causes, subject to the opinion of the court, on a case containing the facts above stated.
Gold, for the plaintiffs,
Kellogg, contra,
The promise of the defendants was not within ' the statute of frauds. It had no immediate connexion with the i original contract, but was founded on a new and distinct considera- I tion. The distinction noticed in Leonard v. Vredenbergh ( 8 Johns. Rep. 39 .) applies to this case, and takes it out of the statute. The defendants made the promise in consideration of a sale of lands made to them by Aaron Wood; and they assumed to pay the debt of the plaintiffs, as being, by arrangement with Wood, part payment of the purchase-money.
Here was a valid assumption of the debt of Aaron Wood, and the only inquiry is as to the extent of the promise.
It was made jointly to Gold and Sill; and the evidence will not warrant the application of the promise to the debts of Gold and Sill in their separate and individual character.
The plaintiffs are, accordingly, entitled to judgment in the first suit, and the defendants in the second suit.
Judgment accordingly.