
    Crawford v. Edison.
    
      Statute of frauds — Promise to pay debt of another.
    
    1. When the leading object of the promisor is, not to answer for another, but to subserve some pecuniary or business purpose of his own, involving a benefit to himself, or damage to the other contracting party, his promise is not within the statute of frauds, although it may be in form a promise to pay the debt of another and its performance may incidentally have the effect of extinguishing that liability.
    2. S. agreed with C. to furnish the material and build him a house for a specified amount. S. employed E. to put on the roof, eave-troughs, and conductor pipes, for a stipulated sum, to be paid when the work should be completed. When E. had done about two-thirds of the work, S. adandoned the job and left the county, without having paid E., or provided for his payment. E. then informed C. that he would not do any more work, unless he was be to paid. Thereupon C. told E. to go on with his part of the work, and complete it, and he would pay him. E. accordingly completed his job, and charged the amount to C. Held, C.’s promise was not collateral, to answer for the debt of another, but was an original one, for his own benefit, and unaffected by the statute of frauds.
    (Decided June 28, 1887.)
    Error to tbe Circuit Court of Lorain County.
    In June, 1883, Christina Crawford was tbe owner of certain lots in tbe village of Lorain. Sbe and ber bnsband, J. S. Crawford, then contracted with Joseph Smith, for the construction of a store building on the lots, for the sum of four thousand two hundred and fifty dollars; a part to be paid as the work progressed, and the balance when the building was completed. Smith employed Edison to put the roof, eave-troughs, and conductor pipes, on the building, for one hundred and fifty-five dollars, to be paid on the completion of the job. When the work had so far progressed, that Edison had done about two-thirds of the work he agreed to do, and after the Crawfords had paid Smith $2,600.00, but nothing had been paid to Edison, Smith abandoned the building and his contract with Crawfords, and left the county. Thereupon Edison notified the Crawfords, that he would not go on with the work unless he was to be paid; and he claims that they “ then in consideration of the premises, and for the further consideration that he would complete the said roof, eave-troughs, and conductor pipes, entered into an agreement with him, whereby it was agreed that they would pay him the full sum of $155.00 so agreed to be paid by said Smith; and that in pursuance to said agreement and relying thereon he completed the roof, eave-troughs and pipes.” The Crawfords failing to pay, Edison brought his action against them in the court of common pleas. His petition contains, substantially, the facts above stated. The defendants answered, denying that they made any agreement with him. The ease was tried to a jury, a verdict returned for the plaintiff, a motion for a new trial overruled, and judgment entered on the verdict. This judgment was affirmed by the circuit court, and the reversal of those judgments is sought'in this court.
    On the trial in the court of common pleas, a bill of exceptions was taken purporting to set out all the evidence, and the charge of the court, from which it appears, that plaintiff testified, on the trial, to the material facts set forth in his petition. After stating his contract with Smith, and the amount of work done under it, and that Smith had gone off without having paid anything on it, he says, “ I went and saw the defendants, and asked if they had seen Smith; Crawford said, ‘ he is gone and you will never see him again.’ I asked what was to be done about the work I was doing; he said, he did not know. I said, I think that the building is holden for it; he said, he had taken counsel and I could not hold the building. I said, I am not going on with the work, unless I am going to get my pay. The next day I saw him; he came to me and said, ‘ Say, Mr. Edison, you need have no fear about your pay; you go right along and complete the job, there is enough going to Smith and I will pay you.’ I said ‘ all right; ’ and the same day he came to the store, and said, ‘ No, Mr. Edison, yon need not have any trouble about that matter, as I will pay you as I said; ’ and I said, all right. I went on and finished the job, and he said it was a good job. After I had the conversation I have stated with defendants, I charged defendants with the whole amount, $155.00, and did not look any further to Smith.” The plaintiff called two other witnesses, who in some particulars corroborated his statement; and gave in evidence a written contract made between Crawfords and one Bonsor. This contract recites that Bonsor “ agrees to complete that portion of the brick building now in operation, originally contracted, and commenced, by one J. 'W. Smith, now in parts unknown, and sub-contracted by said Bonsor, by agreement between said Smith and Bonsor drawn up on the 23rd day of May, 1883, and owned by said Crawfords. That portion said Bonsor is to complete, is that set forth in the contract between said Smith and Bonsor, of May 23, 1883. In consideration of which Crawfords agree to pay Bonsor $740.00.” Thereupon plaintiff rested his case, and the defendants moved “ to withdraw the case from the jury, and render judgment in their favor, for the reason that the promise of the defendants, as proven, was verbal, and to answer for the debt of Smith.” This motion was overruled, and the defendants excepted. The defendants then testified in their own behalf; Crawford to the effect that he made no promise; Mrs. Crawford, that her husband told Edison to “ go on and put up the spouting, and I will see you paid from now on anyway.”
    The bill of exceptions states, that “ the charges as given by the court, are as follows, to-wit (save the formal parts) s
    
      
      “ If the jury find that the defendants entered into an agreement with the plaintiff, that if he, the plaintiff, would finish the roof, they, the defendants, would pay him the price that Smith was to pay, and you find their agreement was absolute, and not that they, the defendants, would stand as security for Smith, and pay if Smith did not, then your verdict should be the amount claimed in plaintiff’s petition, with interest added from the time claimed in the petition, to the 26th day of January, 1885. For I say to you, gentlemen, that if the plaintiff and defendants were of the opinion that Smith had abandoned the contract that he had made with the plaintiff, and the plaintiff was induced to complete the roof, by the promise and agreement that defendants would unconditionally pay him the sum of $155, such agreement would be supported by a sufficient consideration. But on the contrary, if you find the promise or agreement alleged to have been made between the plaintiff and defendants, was to pay or stand for the debt, default or miscarriage of Smith; that is, to pay plaintiff if Smith failed to, in respect to his, Smith’s agreement with plaintiff, to pay plaintiff $155. for putting on the roof, then plaintiff cannot recover in this action, as it is not claimed that such agreement was in any respect in writing, and your verdict should bo for the defendants.” The defendants excepted to this charge, and requested certain instructions to be given in charge, which do not materially affect, the questions in the case, and they need not therefore be set out.
    
      JE. Q. Johnson and Q. A. Gilmore, for plaintiffs in error..
    The cause of action is a promise on the part of the plaintiffs in error to answer to the defendants in error for the debt, default and miscarriage of Smith. It was such a promise as the statute requires to be in writing. Revised Statutes, sec. 4199.
    The agreement alleged on part of Edison, and attempted to be proved, was that Edison should keep the agreement he had made with Smith. Smith had received from Crawfords pay for the entire work. There-was no new consideration moving to Crawfords. There was no new obligation entered into by Edison. Smith, the original debtor, was not discharged. The obligations of Smith to Edison, of Edison to Smith, and of Smith to Crawfords, were in full force.
    The promise, in such case, to be -without the statute of frauds, must be (1) upon a new consideration; (2) the consideration must be one moving between the parties, independent of the original contract; (3) the original debtor must be discharged. Easter v. White, 12 Ohio St. 226; Kelsey v. Hibbs, 13 Ohio St. 340; Birchell v. Neaster, 36 Ohio St. 333; Martin v. Black, 12 Ala. 721; Mason v. Hall, 30 Ala. 599; Murphy v. Renkert, 21 Heisk. 397; Leonard v. Vredenburgh, 8 John. 29; Mallory v. Gillett, 21 N. Y. 412; Fullam v. Adams, 37 Vt. 401; Brightman v. Hicks, 108 Mass. 246; Ames v. Foster, 106 Mass. 400; Booth v. Eighmie, 60 N. Y. 238; Durham v. Arledge, 1 Strob. Law, 5; Osborne v. Farm. L. & T. Co., 16 Wis. 36; Emerick v. Sanders, 1 Wis. 77; Dyer v. Gibson, 16 Wis. 557; Barker v. Bucklin, 2 Denio, 45; Anderson v. Davis, 9 Vt. 136; Chapin v. Merrill, 4 Wend. 657; Furbish v. Goodnow, 98 Mass. 296; Wheelan v. Edwards, 29 Ga. 315; Thomas v. Delphy, 33 Md. 373; Cook v. Barrett, 15 Wis. 596; Hodgkins v. Jackson, 7 Bush. (Ky.) 342; Baker v. Ingersoll, 39 Mich. 158; 57 Am. Dec. 197, n.
    If any recovery was justifiable, it could only have been for work done after the promise. Fritz v. Lamping, 8 Week. L. Bull. 270.
    The promise alleged is entirely collateral. Smith was not released from his obligation to pay Edison. Smith was in no way a party to the contract alleged between Edison and Craw-fords. Estabrook v. Gebhart, 32 Ohio St. 415. Smith was not consulted and did not consent to a transfer of his credit. Smith’s contract with Edison remained in full force. He was liable to Edison and Edison to him. Clay v. Walton, 9 Cal. 328; Andre v. Bodman, 13 Md. 241; Packer v. Benton, 35 Conn. 343; Meriden Brittania Co. v. Zingsen, 48 N. Y. 247; Hearing v. Dittman, 8 Phil. (Pa.) 307; Rollison v. Hope, 18 Texas, 446; Barringer v. Warden, 12 Cal. 311; Stony v. Menzies, 4 Chand. (Wis.) 61; Curtis v. Brown, 5 Cush. 488; Gower v. Stuart, 40 Mich. 747.
    
      
      Metcalf & Webber, for defendant in error.
    Crawfords agreed, if Edison would finish the roof, to pay $155. He was under no legal obligation to complete it. Such contract is not within the statute of frauds. ,
    In 1 Smith’s L. C. 326*, notes to Byrkmyr v. Darnell, it is said, “When it is doubtful whether the sale was made exclusively on the defendant’s credit, the question should be left to the jury,” and in 2 Par. on Cont. 11, “ Whether a contract is collateral' or original- may be a question of construction, and then it is for .the court. But it is often regarded as a question of fact and then it is for the jury.” See also Estabrook v. Gebhart, 32 Ohio St. 420.
   WiXJjiAMS, J.

The contract sued on, it is admitted, was not in writing. The plaintiff’s testimony, if believed, was sufficient to warrant the jury in findingthat the verbal agreement on which' the action was founded, was made between the plaintiff and the defendant J. S. Crawford. The bill of exceptions discloses that it was agreed on the trial, that if a verdict was rendered against either defendant, it might be against both. The jmy having found for the plaintiff, the agreement as he claimed it must be considered established, and the question presented on the reeord therefore, is whether that agreement is within the statute of frauds. The motion of the defendants to withdraw the case from the jury and for judgment, at the conclusion of plaintiff’s testimony; the motion for a new trial on the 'ground that the verdict is not supported by the evidence,; and is contrary to law; and the exceptions to the charge of the court to the jury, and the refusal to give in charge certain instructions requested by the defendants, are different modes of raising the same question. The question stated, is the only one discussed by counsel, and the only substantial one calling for decision.

That portion of the statute of frauds which relates to this case, is now found in section 4199 of the Revised Statutes, and is as follows: “No action shall be brought whereby to charge the defendant, upon any special pi’omise, to answer for the debt, default or miscarriage, of another person; * * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

The object of the statute undoubtedly was, to secure the highest and most satisfactory species of evidence in cases where parties, without apparent benefit to themselves, enter into stipulations of suretyship j and where there would be great temptation, on the part of creditors, in danger of losing their debts by the insolvency of their debtors, to support suits by means of false evidence, by coloring conversations and exaggerating words of commendation or expressions of encouragement into positive contracts. But this commendable purpose of the statute furnishes no warrant for enlarging its provisions, or extending them to cases not fairly within them. It will be seen that the statute, by its terms, operates on cases where there is a primary or original debt or obligation, upon which is based a collateral promise of another person, to answer for such primary, or original debt, or obligation. Hence, if there be in fact no such primary debt or obligation, or the same is extinguished and discharged, or if the promise be not to answer for such primary debt or obligation, but itself be a primary or direct promise for a sufficient consideration, the statute does not apply or require the promise to be in writing.

The statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant liimself.” Brown on Statute of Frauds, sec. 165.

It is to be observed in regard to these promises founded on the liability of another person, that’ to constitute them such as are necessary by virtue of the statute of frauds to be committed in writing, the consideration should appear to have an immediate respect to the liability of the party promised for. If the promise spring out of any new transaction, or move to the party promising upon some fresh and substantive ground of personal concern to himself, the statute of frauds does not attach upon such promise, but the same may be good if the consideration be sufficient, though existing in parol. Roberts on Fraud, 231-2.

In Nelson v. Boynton, 3 Met. 400, Shaw, C. J., says: “ The terms original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases, where the direct and leading object of the promise is, to become the surety or guarantor of another’s debt, and those where although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is, to sub-serve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object, on the part of the promisor. * * * The rule to be derived from the decisions seems to be this; that cases are not considered as coming within the statute, when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself; but where the object of the promise is to obtain the release of the person or property of the debtor, or other forebearance or benefit to him, it is within the statute.”

The supreme court of the United States has thus stated the rule: Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving cither benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may, incidentally, have the effe9t of extinguishing.that liability.” Emerson v. Slater, 22 How. 43.

And such is the generally recognized doctrine in this country.

The distinction is between a promise, the object of which is to promote the interest of another, and one in which the object is to promote the interest of tire party making the promise. The former is within the operation of the statute, the latter is unaffected by it; and when the promisor is himself to receive the benefit for which the promise is exchanged, it is not usually material whether the original debtor remains liable or not.” Reed on Stat. of Fraud, sec. 70-73; Calkins v. Chandler, 36 Mich. 324.

Within the rules thus maintained by the great weight of authority, the agreement in question is not collateral, and the statute of frauds interposes no obstacle to its enforcement. At the time it was made, all the parties recognized the fact that Smith, the contrator, had abandoned, and was not expected to further perform his contract with the defendants. They, finding that he had left the brick work incomplete, entered into a contract with another sub-contractor, to complete it, and pay him for the same. The plaintiff had partly performed his contract with Smith, but had received no compensation; he was informed by the defendants that Smith was gone and would never return. It is true, he might have finished the work he agreed to do and hold Smith liable on his contract, though such course promised no good results; but after Smith forsook the job, relinquished his contract and left the county without paying or making any provisions for paying the plaintiff, was the plaintiff bound to incur still further outlay of time and money, without any reasonable prospect of payment ? Or might he not- acquiesce in such relinquishment of the contract, leaving him at liberty to contract with the defendants, if he chose to do so ? At all events, if he chose, in view of Smith’s conduct, to give up his job, refuse to go on with the work, and take the consequences of a suit by Smith, or lose what he had already expended, rather than risk any further outlay, it was no concern of the defendants, nor could they interpose any objection; he was under no obligation to them to complete the work. Their house must then remain unfinished, or they must procure its completion under some new agreement; and they had already entered into a new contract for the unfinished brick work. When, therefore, they agreed with the plaintiff, that if he would complete the roof and spouting, they would pay him the sum agreed on, their leading, and, indeed their only object, was to subserve a business purpose of their own, and secure to themselves the benefit of having their house completed, instead of allowing it to stand in the useless condition in which it was left by Smith. Such an agreement is in no sense a promise to' pay Smith’s debt. Neither party contemplated that Smith would or might pay any part of the amount •, on the contrary they regarded him as no longer connected with or concerned in the transaction. From that time forward the plaintiff worked under his new contract with the -defendants, and it is wholly immaterial that the price agreed to be paid was sufficient to compensate the plaintiff for the whole work performed by him.

The supreme court of Illinois has made a practical application of the rules stated to a case in no way distinguishable from this.

In Clifford v. Luhring, 69 Ill. 401, it appeared, that the defendant Luhring, let the contract for building a house to Gruis, who sub-contracted the plastering to Clifford, the plaintiff. Gruis failing to complete the contract, the plaintiff made known the fact to defendant, and informed him he would be obliged to quit the work, when the defendant told him to go on and he would pay him. It was held the promise was not within the statute of frauds.

The syllabus of the case is: Where the leading object of the undertaking is, to promote some object of the party’s own, his promise to pay is not within the statute of frauds, although its effect is to release or suspend the debt of another. Thus, where the defendant employed a party to build a house, and, on his failure, the plaintiff, who was a sub-contractor, made known the fact to the defendant, and informed him that he would be obliged to quit work, and the defendant thereupon told the plaintiff to go on with his part of the work, and he would pay him; Held, the defendant’s undertaking was not collateral, but an original one, and was not within the statute of frauds, as assuming to answer for the contractor, his main object being to subserve a purpose of his own.”

Berchell v. Neaster, 36 Ohio St. 331, is cited by counsel for plaintiffs in error, as an authority, sustaining their claim, that the defendants’ promise is within the statute. But in all that classifies that case among collateral and conditional jjromiscs, and distinguishes it from original and unconditional ones, it bears no analogy to the case under discussion.

Judgment affirmed,.  