
    Oliver H. P. Green v. William Brookins.
    
      Statute of frauds: Promise to answer debt, etc., of another. An oral contract whereby G, claiming to have an interest in a patent hay fork, and being about to organize a company to deal in the fork and in rights under the patent, promised B in consideration that he would become a member of the company so to be organized, and subscribe and take two shares therein, and in payment therefor give his promissory note, that such shares should not cost him anything, and that he, G, as soon as the company should be organized, would find a man to buy the shares and take them off B’s hands and pay him the amount of his note, and that he, B, should not be put to any cost or expense on account of the shares or note, does not fall within that provision of the statute of frauds, which declares that every special promise to answer for the debt, default or misdoings of another shall be void, unless in writing.
    
      Statute of frauds: Sale, of goods, etc. Such contract does not fall within the clause of the statute of frauds requiring a contract for the sale of goods, wares, and merchandise, for the price of fifty dollars or more, to be in writing.
    
      Voluntary payment as evidence of damage under agreement to indemnify. Payment made upon such note by B with the knowledge and approbation of G, may be given in evidence to prove damages under Buch agreement to indemnify, and is not open to the objection that it was voluntary and made without coercion.
    
      Assignments of error must be specific. An assignment of error “that there was manifest error in the charge of said court as given to said jury,” is not sufficiently specific, where the whole charge is not set forth in the record, to comply with the rule requiring every assignment of error to be special; and where that portion of the charge which is given in the record is as favorable to the plaintiff in error as the law of the case would justify, the judgment will not be reversed.
    
      Heard April 25.
    
    
      Decided May 2.
    
    Error to Oakland Circuit.
    Nothing need be added to the statement of the case as given in the opinion, except the requests to charge, which, were all refused, and that portion of the charge as given which appears in the record. The plaintiff requested the court to charge as follows:
    “If the jury believe that the defendant promised the plaintiff that if he would help organize the company, by subscribing for and taking two shares of stock, that he, defendant, would find him, plaintiff, a man to take it off his hands, if plaintiff did not want it, or that it should not cost the plaintiff anything, and the plaintiff, relying • upon such promise, did. take two shares of stock, defendant was bound to find plaintiff a man to take the stock off *■ his hands, and if he refused so to do, plaintiff is entitled to recover what the stock cost him, to wit: four hundred and fifty dollars, with interest' thereon from the time this suit was commenced.”
    The defendant requested the court to charge as follows:
    “ 1. That the jury must find that the promise made by the defendant, if any was made, to indemnify the plaintiff and save him harmless, was in writing, or the plaintiff cannot -recover.
    “ 2. To take a case, when a promise is made to indemnify another, out of the statute, the written contract must be given to the collateral promise, and such promise must be in writing.
    “3. That as the contract in this case was verbally for the purchase of stock, or the procurement of the sale of shares of stock, of the value of five hundred dollars, or : thereabouts, and over the value of fifty dollars, such eon- . tract was void, for the reason that no memorandum, in writing, was made of the same, signed by the party to be charged therein.
    ■ “4. That as the averment in the first count in the declaration is that the contract was ‘that if the plaintiff would take of said defendant two shares of the capital stock of said company, at the price of two hundred and fifty dollars,’ if the proof shows that the agreement was to take of the company the two shares of the stock, the plaintiff is not entitled to recover in this suit, under said count in his declaration.
    “ 5. That if the contract, as testified to by the plaintiff, was that if he, the plaintiff, would subscribe and take two shares of the stock, he, defendant, would take it off his hands and pay him his money back; or .that he would find a man to do it, it being for the purchase of property, to vwit: the stock of the value or fixed price of more than fifty dollars, the contract is void, under the statute of frauds, unless the same was in writing, or unless there was some note or memorandum of the bargain made or signed by the defendant, or by some person by him lawfully authorized.
    “ 6. That as the averment of the defendant’s promise in the second count of the declaration is ‘that he would indemnify and save harmless him, the said plaintiff, of and from all damages, costs and charges, which he might sustain or be put to by reason of his having given his said note for the sum of five hundred dollars,’ the voluntary payment of said note by said plaintiff, without being put to damages, costs or charges, is not proof of damages under the contract set out in the said count.”
    The only statement of the charge as given, which the record contains, is as follows, viz: “ But said circuit judge did, among other things, charge the jury ‘that if they found from the evidence that no one person could take more than two shares of stock before the company was organized, and that the plaintiff took the stock merely to accommodate the defendant, so as to get a sufficient amount of stock subscribed to organize the company, and the defendant promised to take the stock and pay for it when the company was organized, and that plaintiff so took the stock for defendant’s benefit, then the case would not come within the statute of frauds, and the plaintiff would be entitled to recover. But, on the other hand, if the jury should find that the plaintiff took the stock on his own account, with the promise of the defendant that if he did not desire to hold it, or that if it should not prove as profitable as was expected, he, defendant, would then take it off his hands (or find a man to do so) and pay for it, such a promise would be void, for want of consideration, and your verdict should be for the defendant.’”
    The jury found a verdict for plaintiff, and judgment was rendered in his favor.
    
      Grofoot & Brewer and A. G. Baldwin, for plaintiff in error.
    
      O. F. Wisner, for defendant in error.
   Graves, J.

Brookins sued Green to recover damages for breach of a verbal contract between them. The declaration contained two special counts and the common counts. No evidence was given applicable to the latter, and no question arises upon them. The first special count stated that Green claimed to have an interest in a hay-fork patent, and was about to organize a company for the purpose of dealing in the fork and in rights under the patent, and promised Brookins that, in consideration that he would become a member of the company so to be organized, and subscribe for and take two shares at two hundred and fifty dollars each, and in payment therefor give his promissory note, that such shares should not cost him anything, and that he, Green, as soon as the company should be organized, would find a man who would buy the shares and take them off Brook-ins’ hands, and pay him the amount of the note, and that he, Brookins, should not be put to any cost or expense on account of the shares or note. It is then averred that Brookins, confiding in Green’s promise, did subscribe for the two shares, become a member of the company and give his note for five hundred dollars, and that the company was organized.; that he, Brookins, then requested Green to find a man to take the shares and pay the amount of the note, and save him from all cost and expense, which Green refused to do, and that he, Brookins, had been required to pay and had paid on his said note four hundred and fifty dollars, and that such shares of stock had cost him that sum.

The second special count was substantially like the first, except that the agreement on the part of Green was laid as a promise to Brookins to indemnify and save him harmless from all damage on account of the note, if he should give it.

The case was tried by a jury, and the questions presented arise upon the charge and refusals. No point is made here upon the fourth assignment of error.

The first, second, third and fifth requests of plaintiff in error raise two questions under the statute of frauds. The plaintiff in error insists, first, that the contract between the parties being wholly verbal, it was void under that provision which declares that every special promise to answer for the debt, default or misdoings of another person shall be void unless in writing, etc.; and, second, that it is also void under the provision respecting the sale of “ goods, wares or merchandise, for the price of fifty dollars or more.”

The promise in this case, by Green, as alleged in the declaration, was not collateral; not an undertaking to Green in relation to the doings or misdoings of any third person. It was a promise by Green to Brookins to find some one to take his place as member of the company and shareholder, and to save Brookins from expense and damage in consequence of his becoming shareholder, and giving the note pursuant to the agreement between the two. It seems to be settled by authority that a promise of that description is not within this statute.

A leading case on this subject is that of Eastwood v. Kenyon, 11 Adol. & Ell., 438. There the plaintiff was liable to one Blackburne, on a promissory note; and the defendant for a consideration promised the plaintiff to pay that note. Lord Denman said: “If the promise had been made to Blackburne, doubtless the statute would have applied; it would then have been strictly a promise to answer for the debt of another; and the argument on the part of the defendant is that it is not less the debt of another because the promise is made to that other, viz: the debtor, and not to the creditor, the statute not haying in terms stated to whom the promise contemplated by it is to be made; but upon consideration we are of opinion that the statute applies only to promises made to the person to whom another is answerable.” This case appears to have been followed in England, and in this country it has been cited with approbation and applied in the courts of last resort in several of the states; and in many eases the same view has been recognized. See Beaman v. Russell, 20 Vt., 205; Mersereau v. Lewis, 25 Wend., 243; Alger v. Scoville, 1 Gray, 391 ; Fish v. Thomas, 5 Gray, 45; Townsley v. Sumrall, 2 Pet., 182 ; Nelson v. Bank, 48 Ill., 36; Goetz v. Foos, 14 Minn., 265; Perkins v. Littlefield, 5 Allen, 370 ; Barker v. Bucklin, 2 Denio, 45, 60; Robinson v. Gilman, 43 N. H., 485; Shook v. Vanmater, 22 Wis., 532.

As we see no reason for questioning the soundness of this construction, its adoption is recommended by the strong necessity there is for a uniform application of this branch of the law. The provision obtains in substantially the same form in England and all the states of the Union, and the interests of business require that' it should receive, so far as practicable, the same interpretation everywhere.

Was the agreement respecting the disposition of the stock within the clause requiring a contract for the sale of goods, wares and merchandise for the price of fifty dollars or more, to be in writing? The plaintiff in error maintains that it was. That agreement had reference to stock in a voluntary company not yet organized. It was an agreement with one of the promoters of the company. It contemplated the creation of stock by the organization of a joint stock association through the joint action of the parties to the agreement and others. It provided that Brook-ins should become one of the company, and in doing so take two shares and give his note therefor in the sum of five hundred dollars, and that Green would then find a man who would take the shares and pay the note without charge or expense to Brookins. We think the agreement thus set forth in the declaration by which Green was to find a man to take stock to be thereafter created in' a company thereafter to be organized through the means contemplated, and which stock as it originated should stand in the name of Brookins, was not an agreement on the part of Green to buy goods, wares and merchandise, within the meaning of the statute in question. This arrangement did not in strictness provide for a sale of the anticipated stock. In substance it was an arrangement by which, if Brookins would embark in the enterprise, Green undertook to procure some one to be substituted in Brookins’ place as a shareholder and member of the company, if Brookins so desired. Whether, therefore, the English cases of Humble v. Mitchell, 11 Adol. & Ell., 205; Watson v. Spratley, 10 Exch., 222; Duncuft v. Albrecht, 12 Sim., 189; Hargreaves v. Parsons, 13 Mees. & Wels., 561, which hold that a contract for the sale of railway shares and the like is not one for the sale of goods, wares and merchandise within the statute of frauds, are sound, and furnish a correct exposition of the statute or not, we think the present case is clearly not embraced by the clause referred to. A just view of the subject-matter and the nature of the engagement necessitate this conclusion.

The sixth assignment of error raises the objection that the payment of four hundred and fifty dollars on the note by Brookins was voluntary, and therefore not evidence of damage under the agreement of Green to indemnify him.

This position is, however, rendered untenable by the circumstances under which the payment was made, as testified to by both parties. According to their evidence, the note was taken up by Brookins with the knowledge and approbation of Green. Under this state of facts, Green is not in a position, when called on for indemnity, to defend himself on the ground that Brookins paid without being properly charged. When Green approved of the payment, he virtually admitted to Brookins that there was no ground for refusing, and if there was none he has no defense on the ground of payment without coercion.

The court refused the requests to charge on both sides, and while the record does not contain the whole charge, it states that the judge directed the jury “that if they found from the evidence that no one person could take more than two shares of stock before the company was organized, and that the plaintiff took the stock merely to accommodate the defendant, so as to get a sufficient amount of stock subscribed to organize the company, and the defendant promised to take the stock or pay for it when the company was organized, and that the plaintiff so took the stock for defendant’s benefit, then the case would not come within the statute of frauds, and the plaintiff would be entitled to recover. But, on the other hand, if the jury should find that the plaintiff took the stock on his own account, with the promise of the defendant that if he did not desire to hold it, or that if it should not prove profitable as was expected, he, defendant, would then take it off his hands (or find a man to do so) and pay for it, such a promise would be void for want of consideration, and your verdict should be for the defendant.”

The only assignment of error relating to the instruction to the jury is “that there was manifest error in the charge of said court as given ■ to said jury.” This assignment is open to the objection that in the actual circumstances it is not a compliance with the -rule which requires every assignment of error to be special. It complains generally of the whole charge and does not specify the particular defect or inaccuracy contemplated. The matter is left entirely at large, and we are as much in the dark as to the nature of the objection of plaintiff in error, or the portion of the instruction deemed to be wrong, as we should be if this assignment were stricken out. If we may judge of the correctness of the charge without a more particular allegation of error and when but a portion of the charge is spread upon the record, there is reason for thinking that the advice to the jury was quite as favorable to the plaintiff in error as the law of the case would justify.

As we- discover no error in the record, the judgment of the circuit court should be affirmed with costs.

The other Justices concurred.  