Olmstead v. Greenly

Headnote

" The plaintiff was endorser ofanotemade accommoda^*S who’was aEo piafntiflf *hav-money and °f goods, with ready to pay the note, and to secure it was agreed between the plaintiff, B., and the defendant, that B. should place the money and £oods in the hands of the defendant, who should pay the note, and the debt due the plaintiff, and indemnify the plaintiff against the note, &c. and B. accordingly delivered the money and goods to the defendant, who thereupon undertook to pay the note, &c, Held, that this was not a promise or undertaking for the debt or default of another, within the statute of frauds: and the defendant having failed to perform his agreement, the plaintiff is entitled to recover damages for the breach of the contract.

THIS was an action of assumpsit. The declaration con-count for money paid, The three first counts, between them, tamed three special counts, and &c. money had and received, &c. though there was some slight variation stated, in substance, that the plaintiff was an endorser of a promissory note for one thousand dollars, made by E. Bris-f0¡ and Justin Higgins, for their own benefit and accommodation, payable at the office of the Utica Insurance Company, to the plaintiff and Elisha Payne, and which the plaintiff had become liable to pay ; that E. Bristol was indebted

to the plaintiff in the sum of one hundred and fifty dollars ; that it was agreed between the plaintiff" and defendant, and Bristol, that Bristol should place in the defendant’s hands the sum of six hundred dollars in money, and goods to the amount of fifteen hundred dollars; and that the defendant should pay'the note, so endorsed by the plaintiff, at the Utica Insurance Office, and should indemnify the plaintiff against all moneys, costs, &c. which he might be compelled to pay by reason of his said endorsement, and should also pay to the plaintiff the debt owing to him from Bristol. The plaintiff alleged, that Bristol had the money and goods ready for the purpose of paying the note and the debt due the plaintiff; and that the plaintiff, instead of receiving the money, &cc. himself, caused and procured it to be delivered by Bristol into the hands of the defendant for the purposes above mentioned. But that the defendant did not pay the said note so endorsed, &c. nor did he indemnify the plaintiff, &c. according to his promise and undertaking, &c.

The defendant pleaded, 1. Non assumpsit; 2. As to the three first counts, the statute for the prevention of frauds, the agreement being a parol undertaking for the debt or default of Bristol, and Bristol & Higgins. To this plea there was A demurrer, and joinder in demurrer, which was submitted to the Court without argument.