
    Wooten v. Wilcox, Stilson & Company.
    Where one has a statutory lien for supplies upon personal property belonging to a firm, which property is sold to another firm composed in part of the same members, and thereupon the purchasing firm, to prevent a foreclosure and sale under the lien, agree with the creditor to pay the debt if he will grant certain indulgence and furnish other like supplies to them for their use, and the creditor complies with his undertaking, the case is not within the statute of frauds, and he may recover of the second firm upon their contract to pay the debt of the first firm.
    July 8, 1891.
    By two Justices.
    Liens. Contracts. Statute of frauds. Before Judge Roberts. Bodge superior court. August term, 1890.
    Reported in tbe decision.
    DeLacy & Bishop and B. C. McLennan, for plaintiff.
    E. A. Smith, for defendants.
   Bleckley, Chief Justice.

According to the declaration, the plaintiff had a statutory lien upon a saw-mill of Wilcox & Cleland for logs and timber, amounting to $468.70. With notice of that lien, Wilcox, Stilson & Co. purchased the mill, after which the plaintiff was about to proceed to foreclose and enforce his lien, but was prevented from so doing by the undertaking of the latter firm, who promised and agreed with the plaintiff that they would pay him the sum due from the former if he would indulge them a few days and not proceed at once to foreclose and enforce his lien, and if he would continue under a similar contract with them to furnish logs and timber to the mill. They thus became indebted to him in the sum of $55 for logs and timber furnished to them under this contract in addition to the amount assumed by them for the previous firm, making a total of $518.70. The declaration was demurred to on the general ground that there was no cause of action alleged against the defendants, and the demurrer was sustained so far as it related to the antecedent debt, the court basing its decision partly upon the specific ground that the-“declaration did not clearly allege that the plaintiff had released the original debtor.” The defendants were a partnership which had purchased th,e property of another firm and continued as successors in the same business, -one of the old firm having retired, and his associate, with two others, composing the new partnership. The question is as to the liability of the new firm upon its promise to a creditor to pay the latter a debt of the original firm, this promise not appearing to have been made in writing.

The rule of pur code is that a promise to answer for the debt of another must be in writing, signed by the party to be charged therewith or some person by him lawfully authorized; otherwise it is not obligatory. An exception to the rule exists, however, “ where there has been performance on one side, accepted by the other, in accordance with the contract.” Code, §§1950,1951. Here the plaintiff alleges full performance on his part; he gave the stipulated indulgence, and continued to furnish logs and timber so long as the defendants continued in the business, and until they dissolved partnership. They took the benefit of the plaintiff’s performance, and having done so, they are not in a condition to allege the statute of frauds, modified as it has been by our code, as a defence to an action which seeks to compel them to perform the contract on their part. Indeed, we are inclined to think that, irrespective of the express exception contained in the code, this contract is enforceable as an original undertaking by the new firm, made on a valuable consideration moving to them, and entered into to serve their own interest as a leading object and to protect property which had become theirs, subject to the plaintiff’s lien, from being subjected to that lien at once. According to the declaration, the lien was ripe for immediate enforcement, and it was to prevent that enforcement that the defendants stipulated for indulgence and obtained it. The plaintiff tied his hands, bound himself by contract to allow the indulgence asked for, and did in fact allow it. To suspend the enforcement of the lien for the stipulated time was, or might have been, beneficial to the defendants. It left them in the possession and use of the property, and while it may have been less valuable to them than an extinction of the lien would have been, it fulfilled all the requisites of a valid consideration as defined by the code. “ A consideration is valid if any benefit accrues to .him who makes the promise, or any injury to him who receives the promise.” Code, §2740, The fulfillment of their promise by the defendants would discharge the lien, and that seems all that the true principle of the authorities on the subject would require. Throop on Verbal Agreements, §573. Moreover, coupled with the consideration to forbear was the agreement by the plaintiff to continue to furnish logs and timber to the defendants. This part of his contract he also performed, and it is to be presumed that the defendants were benefited thereby. The ease is thus within the principle of many authorities which tend to uphold the contract, though not in writing, as an original undertaking on the part of defendants to make the debt their own. Young v. French, 35 Wis. 111 ; Weisel v. Spence, 59 Wis. 301, 18 N. W. Rep. 165 ; Fitzgerald v. Morrissey, 14 Neb. 198 ; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291 (notes); Throop on Verbal Agreements, §647 ; Browne Stat. Frauds, §200(a) ; 1 Reed Stat. Frauds, §§72, 143 ; Phillips on Mec. Liens, §§213, 505.

The court erred in sustaining the demurrer. Consequently, a new trial is necessary. Judgment reversed.  