
    Hiram Curtis vs. Eli Brown & another.
    It having been agreed between the parties to a building contract, which had been partly executed, that the builder should release the owner from the further performance of his contract, and should assign to him the materials procured for the completion of the building, in consideration of which the owner verbally promised to pay the outstanding bills due from the builder for labor and materials ; it was held, that the promise was void within the statute of frauds.
    This was an action of assumpsit, commenced originally in the justices’ court, and carried by appeal to the court of common pleas, where it was tried before Wells, C. J. The alleged cause of action was a verbal promise by the defendants to pay the plaintiff the amount of a bill originally due him from one Augustus A. Coffin.
    The general issue having been pleaded and joined, the plaintiff offered evidence, that the defendants, on the 21st of April, 1847, entered into a building contract with Augustus A. Coffin, who commenced and continued the erection of the houses therein contracted for, according to the contract, until on or about the 15th of July, 1847, when the time allowed by the contract for completing the houses, was, by agreement between the defendants and Coffin, extended to the 25th of November then next; that the-defendants and Coffin proceeded under the contract as extended, until on or about the 15th of August, 1847, when the defendants, fearing that Coffin would not complete the houses within the time as extended, proposed to him to release them from the contract, and to assign to them the building materials then upon the premises; that Coffin replied that he would not release the defendants from the contract, nor assign to them the materials, but should proceed to complete the houses according to contract, unless the defendants would agree to pay all the. bills for labor and materials then outstanding; that the bills were then all enumerated by Coffin to the defendants at their request, and their several amounts named, as nearly as Coffin could recollect them, but the amount was not added up, nor was any balance struck; that the plaintiff’s bill and its amount were named; that the defendants well knew the amount and value of the materials then on the premises ; that the defendants thereupon agreed by paroi with Coffin, in consideration that he would release them from the contract and assign and deliver to them the materials on the premises, that they would pay all the outstanding bills on the houses; that Coffin, thereupon, in consideration of the defendants’ promise, released the defendants by paroi from the contract, and assigned and delivered to them the materials on hand, which were worth at least three hundred dollars; that it was agreed between the defendants and Coffin, that Coffin should continue to work by the day upon the houses, that the work might not be interrupted ; that the defendants, at the time of making the agreement with Coffin, to pay all the outstanding bills, requested him to see all the creditors of such bills, and inform them of the agreement between himself and the defendants, and request them to make out their bills to the defendants, and that the defendants would pay them, if Coffin approved the bills or said they were right; that the defendants, pursuant to this contract, took possession of the materials and continued the erection of the houses, with the knowledge and consent of Coffin; that Coffin, pursuant to the defendants’ request, saw all the creditors of bills, ascertained the amount due to each, informed them of the agreement between himself and the defendants, and requested them to make out their bills to the defendants; that the creditors did thereupon make out their bills to the defendants, and agreed with Coffin verbally to look to the defendants for their pay, and the bills were all approved by Coffin in writing upon each; that the defendants, in making the agreement to pay the outstanding bills, had for then- sole motive a benefit which they did not before enjoy, accruing immediately to themselves, namely, a release from the building contract, and an assignment of the building materials ; that Coffin, at the time of the defendants’ agreement to pay the bills, owed the plaintiff $15.77, the amount of his claim for sawing and planing a portion of the lumber on the houses, and which was assigned to the defendants by Coffin; that Coffin informed the plaintiff, with the other creditors, of the defendants’ agreement to pay the outstanding bills, and he consented verbally to take the defendants as his debtors, and pursuant thereto, made out his bill to them, and presented it for payment, with Coffin’s written approval thereon, but that they declined to pay it; though, after making the agreement to pay the outstanding bills, they proceeded to pay a large amount of them.
    The defendants objected to the plaintiff’s right to recover upon this evidence, if it should be admitted : —
    1st. That the promise of the defendants was to pay the debt ol another, and not being in writing, was void by the statute of frauds.
    2d. That if the defendants promised Coffin to pay the- outstanding bills, there was no privity of contract resulting therefrom, between the plaintiff and the defendants.
    The presiding judge, being of opinion, that if the evidence offered by the plaintiff should be admitted, he would not be entitled to recover, instructed the jury accordingly ; who returned a verdict for the defendants, and the plaintiff excepted.
    The case was argued at the last November term.
    
      
      O. B. Potter, for the plaintiff.
    
      T. Willey, for the defendants.
   Shaw, C. J.

This cause was argued at the last term in November, and the court reserved it for further consideration ; not because they entertained much doubt on the question, but the authorities having again been fully cited, we were desirous of seeing, whether there was any distinction, in principle, between this and cases recently decided by this court.

The exceptions present a strong case of a promise made by the defendants, to pay the debts due from Coffin to the plaintiff, and to the other workmen and persons who had supplied materials, and that upon good consideration, to wit, the being relieved by Coffin from the further performance of their contract with him, and an assignment by Coffin of the materials procured by him for the completion of the building. The promise does not seem to have been direct, from the defendants to the plaintiff, but it was made to Coffin with a request to communicate it to the plaintiff, which he did ; and we are not disposed to doubt, that such promise is equivalent to a direct promise to the plaintiff. Still the question recurs, whether an action will lie on a promise by the defendants, to pay the plaintiff the debt due to him from Coffin, unless such a promise is in writing. The court are of opinion, that this question is decided in the negative by the late case of Nelson v. Boynton, 3 Met. 396.

A promise to pay the debt of another must not only be made on a good consideration, but must be proved by written evidence. Loomis v. Newhall, 15 Pick. 166; Stone v. Symmes, 18 Pick. 467. It is no sufficient ground, to prevent the operation of the statute of frauds, that the plaintiff has relinquished an advantage, or given up a lien, in consequence of the defendant’s promise, if that advantage had not also directly enured to the benefit of the defendant, so as in effect to make it a purchase by the defendant of the plaintiff. Fish v. Hutchinson, 2 Wils. 94; Jackson v. Rayner, 12 Johns. 291; Nelson v. Boynton, 3 Met. 403.

The cases, in which it has been held otherwise, are those where the plaintiff, in consideration of the promise, has relinquished some lien, benefit, or advantage for securing or recovering his debt, and where by means of such relinquishment the same interest or advantage has enured to the benefit of the defendant. In such cases, although the result is, that the payment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase, by the defendant of the plaintiff, of the lien, right, or benefit in question. Williams v. Leper, 3 Burr. 1886; Castling v. Aubert, 2 East, 325; Edwards v. Kelly, 6 M. & S. 204, 209.

When, by the new promise, the old debt is extinguished, the promise is not within the statute ; it is not then a promise to pay the debt of another, which has accrued, but it is an original contract, on good consideration, and need not be in writing. But where the original debt still subsists, and where the plaintiff has relinquished no interest or advantage, which has enured to the benefit of the defendant, it is not an original contract, but a contract to pay another’s debt, and must be in writing.

To apply these rules and principles to the present case; the promise of the defendants, supposing it to have been made directly to the plaintiff, was a promise to pay the debt due to him from Coffin; the plaintiff did not release Coffin, or relinquish any lien or benefit; and although there was a good consideration in law, for the defendants’ promise, it was a consideration moving from Coffin, and not from the plaintiff. The plaintiff and the other workmen and creditors for materials, had no lien on the building contract, or on the materials procured for completing the building; they paid the defendants nothing; they released no security ; they stood afterwards on the same footing, and with the same rights, which they had before the defendants’ promise was made.

The case certainly appears to be a hard one for the plaintiff, so far as the facts are disclosed; and beyond that, of course, we intimate no opinion ; but if the defence is inequitable, it is the common case, where a party is able to prove an actual promise, on a good consideration, by paroi evidence, and thus establish a meritorious and equitable claim ; but on which it is provided by positive law, that no action shall lie unless the case is established by proof in writing, which the party cannot produce. It is a case not of merits, but of evidence, and where the law for wise purposes, has prescribed, as an inflexible rule, that no action shall lie without proof in writing. Such rule must prevail, however equitable the claim may apparently be.

Exceptions overruled.  