p. 145Calvin Haines, Pl’ff, v. Robert K. Smither, Def’t.(Supreme Court, General Term, Fifth Department,Headnote
Statute of frauds—Promise to pat debt of .another.Plaintiff having a claim against defendant’s father and threatening to arrest him, defendant wrote to plaintiff’s attorney that he had proposed to his sister that they two pay the claim by paying half in cash and endorsing the father’s note for the balance. He afterward paid the half and said he would settle the claim, but subsequently refused to endorse the note. Held, that the writing did not constitute a promise to pay, nor did the subsequent oral agreement and payment help out the writing; that such a promise is not one of those which is taken out of the statute by part performance.
Motion by the plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after verdict for defendant, by direction of the court, at the Erie circuit.
W. H. Clark, for the motion; B. Frank Dake, opposed.
The action was to recover a balance, unpaid, on an alleged promise in writing of the defendant to pay the debt of another.
The alleged promise in this case was, first, not a promise at all, and, second, it expressed no consideration. It seems that the plaintiff had a claim of $100 against the defendant’s father, for which he threatens his arrest, and that he called upon the defendant to pay or secure the debt in order to save his father from that proceeding. The paper relied upon as a promise in writing was a letter addressed by the defendant to the attorney for the plaintiff, in which he states that he has proposed to his sister that they two pay the claim by paying fifty dollars in cash and endorsing the note of the father and his wife for the balance, and that he is •awaiting her answer to the proposition. Two or three days after the defendant called on the attorney, informed him that he had •concluded to settle the matter, and gave him his check for fifty dollars, payable to the order of the plaintiff. The next day after that he wrote the attorney again, in effect, that he had obtained further information in respect to the claim against his father, and would decline to endorse the proposed note for the balance of the claim.
p. 146This is all the "foundation for the plaintiff’s' allegation of a promise in writing. It is apparent that the writing contains no-promise. It only informs the plaintiff, through bis attorney, that he has proposed to his sister an arrangement J>y which, if she consents, the claim will be paid or settled, and no-consideration whatever is mentioned in the letter. The writing cannot be-helped out either as to the promise or as to the consideration by any paroi negotiations or promises preceding or following it. It is now well settled that the writing required by the statute of frauds to support a contract to pay the debt of another must be complete in itself; must contain all the elements of a valid contract, and must show on its face, either expréssly or by necessary implication, that it rests upon a valid consideration.
Castle v. Beardsley, 10 Hun,
343 ; Drake v.
Seaman, 97 N. Y., 230 ; Barney v.
Forbes, 118 id., 580, 585; 29 St. Rep., 980 . The evidence of the subsequent oral statement of the defendant that he had decided to settle the claim did not help out the writing, and the payment of the fifty dollars was purely voluntary and gave no aid to the oral promise to answer for the remainder of the-debt. Such a promise is not one of those which is taken out of the statute by part performance.
The motion for a new trial must be denied and judgment-directed for the defendant on the verdict Macomber and Lewis, JJ., concur.