p. 657Headnote
A promise by one person to indemnify another for becoming a guarantee for a third, is not within the statute of frauds ; such promise need not bo in writing, and the assumption of the responsibility is a sufficient considera, tion for the promise.This was an action of assumpsit tried at the Brie circuit in April, 1828, before the Hon. John Birdsall, then one of the circuit judges.
The plaintiff, at the request and on the solicitation of the defendant, entered into a written agreement under seal with one Asa Ransom, by which they covenanted with a mercantile firm that if they would supply one Aset Ransom, jun. with such goods, wares and marchandizes as he should apply for, that they, the covenantors, would pay such sum and sums of money remaining unpaid by A. Ransom, jun, not exceeding $2000, as should be due to the firm. The defendant promised the plaintiff when he so solicited him to enter into such agreement, that he would indemnify and save him harmless against the consequences of so doing. The witness who proved the promise to indemnify did not understand that the defendant was to have any interest in the goods to be furnished. The plaintiff and A. Ransom were subsequently sued on the agreement entered into by them, and the judgment obtained against them, on which an execution issued and the plaintiff was compelled to pay upwards of $600. After proof of these facts the defendant moved for a nonsuit, on the ground that the promise of the defendant not being in writing was within the statute of frauds. The motion was denied, and the jury, under the charge of the judge, found a verdict for the plaintiff for the sum claimed, which was moved to be set aside.
H. White, for defendant.
H. Shumway, for plaintiff.
By the Court
The contract on which this action is brought is not, in my opinion, within the statute of
p. 658frauds. The action is brought on the parol undertaking of the defendant to save the’ plaintiff harmless. This is clearly an original undertaking; it was not made with the party buying or selling the goods. The goods sold by Hickok and Hart to Ransom were not the consideration for the promise. It was held by Lord Hardwicke, in the case of
Tomlinson v.
Gill, (Ambler, 330,) that if the consideration of the promise takes its' root in a transaction distinct from the original liability, the case is out of the statute. This proposition is illustrated by the case in which it is laid down and by the case of
Read v.
Nash, (1 Wilson, 305.) In the first case Gill promised the widow and administratrix of an intestate that if she would permit him to join with her in letters of administration he would make good any deficiency of assets to discharge the intestate’s debts ; in the second, a third person and stranger to a suit for a battery promised the plaintiff if he would withdraw his record and proceed no further he would pay him fifty pounds. The person malting this promise, which was not in writing, was held liable. Lee, Ch. J. says, “ the true difference is between an original promise and a collateral one ; the first is without the statute, and the other is not, when it is to pay the debt of another which was already contracted.”
The promise in this case was original, and not a collateral undertaking; but had it a sufficient consideration ? It is not disclosed that the defendant received any benefit from what was ‘done by the plaintiff; nor is it necessary, as I conceive, that he should, to make him liable. In Tomlinson v. Gill, and Read v. Nash it does not appear that the defendants did or could derive any benefit from their undertakings; yet they were held liable on them. The consideration was the harm to the plaintiffs. In this case the consideration was the assumption of the plaintiff of a responsibility on which he was oblige to pay about six hundred dollars. This is an abundant consideration for the undertaking, on which this action is brought.
Judgment for the plaintiff.