Common Pleas

WILSON.

บ.

T. T. 1864. claimed by the plaintiff, could he have recovered it back as on a failure of consideration? If he could not, then there was a consideration, and one sufficient to support the subsequent express MARSHALL promise. In Sweet v. Lee (a) it was held that money could not be recovered back which had been paid under a contract void by the Statute of Frauds. But here there is abundance to support the subsequent promise; first there is the previous request; then performance by the plaintiff on that request; then there is the consideration moving from the plaintiff; and lastly, the subsequent express promise.

Before the Statute of Frauds, a promise to answer for the debt, default, or miscarriage of another was a good promise without writing, and could be enforced. The Statute of Frauds does not affect the legality of the contract. That statute is a

statute of evidence; it does not affect the contract itself, but only the evidence by which it is sought to be supported. In Crosby v. Wadsworth (b), Lord Ellenborough says, "The Statute of Frauds does not vacate such contracts, if made by parol." Lee v. Muggeridge (c) goes the length of this, that a moral obligation is sufficient to support a subsequent express promise; in that case, Mansfield, C., J. says, "It has been long established, that "where a person is bound morally and conscientiously to pay a "debt, though not legally bound, a subsequent promise to pay will "give a right of action." And Heath, J., says, "The notion that a "promise may be supported by a moral obligation is not modern; "in Charles the Second's time, it was said that if there be an iota "of equity, it is enough consideration for the promise." In Eastwood v. Kenyon (d), Lord Denman, C. J., approves of the note to Wennall v. Adney (e), and says, "Most of the older cases on this "subject, are collected in a learned note to the case of Wennall v. "Adney, and the conclusion there arrived at seems to be correct in "general, that an express promise can only revive a precedent "good consideration, which might have been enforced at law,

(a) 3 M. & Gr. 452.

(c) 5 Taunt. 36.

(b) 6 East. 602.
(d) 11 Ad. & Ell. 438.

(e) 3 Bos. & Pul. 247.

Common Pleas

WILSON.

v.

through the medium of an implied promise, had it not been T. T. 1864. "suspended by some positive rule of law; but can give no original "'cause of action, if the obligation on which it is founded never "'could have been enforced at law, though not barred by any legal MARSHALL "maxim or statute provision.'" In Seago v. Deane (a), Gaselee, J., says, "This was a contract independent of the lease, and it is clear "that though a party be not bound by a contract, yet, if he make a "promise after it has been performed, he is liable on an account "stated."

Dawson v. Remnant (b) is a case strongly in favor of the plaintiff. That was an action for the amount of a tavern bill, and the declaration contained a count on an account stated. Some of the items of the bill would not have been recoverable on account of the Tippling Acts. It was proved that, on the settlement of accounts between plaintiff and defendant (there being cross demands between them), these items were included in the plaintiff's demand, without objection on the part of the defendant; and a balance struck on the foot of that account in favor of the plaintiff. It was contended by the defendant, that his cross demand, which was in the nature of a set-off, was to be taken in the nature of payment, and should be applied to those items only of the plaintiff's demand which could be legally enforced; but Mansfield, C. J., ruled that the settlement of the account was conclusive, and that the plaintiff was entitled to recover.

66

In Chitty on Contracts 7th ed., p. 43, it is said:" A promise "in writing, to pay a debt already incurred by a third person, is not "available, unless it be made on a new consideration, such as "forbearance; but if the credit were originally given to the third person at the promiser's request, this might constitute a sufficient "consideration for his subsequent guarantee." In 1 Selwyn's Nisi Prius, p. 115, it is said:"Although no action might lie on the "original debt or contract, from the deficiency of legal evidence "to support it, e. g., for want of its being in writing, under the "Statute of Frauds, yet it may, on the admission upon an account (b) 6 Esp. 24.

(a) 4 Bing. 459.

T. T. 1864. "stated, if the defendant has received the benefit of the contract, Common Pleas "and has subsequently admitted his liability."

WILSON.

V.

Cocking v. Ward (a) is exactly in point. In that case the MARSHALL defendant verbally promised the plaintiff that, if she would give up possession of a farm which she was in the occupation of, and would induce her landlord to accept the defendant as a tenant, he would pay her £100. The plaintiff gave up possession of the farm to the defendant, and requested her landlord to accept the defendant as tenant, which he did. The defendant afterwards admitted his liability under the agreement, but failed to pay the £100, and an action was brought for that sum. The declaration contained a special count on the agreement, and also a count on an account stated. It was contended by the defendant, that the agreement, being for the sale of an interest in land, could not be proved without writing; while the plaintiff insisted that there was sufficient evidence to support the count on an account stated. It was held that the evidence was sufficient; and Tindal, C. J., says, "The plaintiff, therefore, failing upon the special contract, the remaining question is, whether she is in a condition to recover "the £100 under the count upon an account stated? There was "distinct evidence in this case, that after the plaintiff had given "up the possession, and after the defendant had succeeded to it "through the plaintiff's application to the landlord, the defendant "admitted that he owed the £100 to the plaintiff. And this appears "to us to be sufficient evidence to enable the plaintiff to recover 66 on the account stated."

66

In Porter v. Cooper (b), Alderson, B., says, at p. 395, "The "admission of a certain sum being due, in respect of a demand for "which an action would lie, is evidence sufficent to support a count "on an account stated." In Kennedy v. Brown (c) all that was held was, that where there was any illegality or immorality in the consideration, a claim founded on such consideration could not be relied on in support of a count on an account stated. Gough v. Findon (d), cited by Mr. Brooke, was decided on the ground that

Common Pleas

WILSON

บ.

no liability ever existed; and in Hopkins v. Logan (a), the promise T. T. 1864. laid in the declaration was to pay in futuro, for which there was no consideration. Lemere v. Elliott (b) was decided on the same ground as Hopkins v. Logan; and in that case Martin, B., says, MARSHALL. "Here there was no debt whatever. Supposing there was a part "performance of the agreement, that is nothing more than an "executory contract, to be performed by the sale of the house and "business; and so long as it remained unexecuted, there is no "consideration for an account stated."

Again, the second promise may be looked upon as a promise by the defendant to pay a debt of his own, for he had, by the original promise, rendered himself liable at Common Law.

They cited Laycock v. Pickles (c); Lampleith v. Brathwait (d); Pinchon v. Chilcott (e); 2 Story on Contracts, p. 393; Trueman v. Fenton (f); Kirkpatrick v. Tattersall (g); Foster v. Allanson (h).

Carson, in reply.

The jury have found that the liability of the defendant was always of a secondary character, and as surety for Browne. The jury are the proper tribunal to determine that question; and if they find that the undertaking was a collateral one, the plaintiff cannot recover on an indebitatus count. In 1 Williams' Saunders, 2 b., it is said: "It is often the subject of inquiry at Nisi Prius, to "whom the credit was given; and such nice distinctions have been "taken on the wording of the promise as to make it impossible "to lay down any precise rule of construction, but the jury must "determine to whom the credit was given. Bull. N. P., p. 281: "If it appears that the credit was given to the defendant, that is, if "the goods, &c., were really sold to him, though delivered to "another, the statute is then out of case. But if it appears that "the person for whose use the goods were furnished is liable, and

a sufficient promise in writing by the defendant to pay the debt is

(a) Ubi supra.

(c) 10 Jur., N. S., 336.

(e) 3 C. & P. 236.

(g) 13 M. & W. 766.

VOL. 15.

(b) Ubi supra.

(d) 1 Sm. L. C. 140.

(f) Cowp. 544.

(h) 2 T. R. 479.

60 L

Common Pleas

WILSON v.

MARSHALL.

T. T. 1864. "produced, though the plaintiff will then be entitled to recover, yet "it can only be upon a special action of assumpsit, stating the "particular circumstances of the promise, and not upon a general "indebitatus assumpsit for goods sold and delivered to defendant, 66 or for goods sold to defendant, and delivered to another at defend"ant's request, or for goods sold and delivered to another person at "defendant's request." And for that he cites several authorities. In Rozer v. Rozer (a), there was an indebitatus count for goods sold and delivered to a third person, at the request of the defendant; the defendant pleaded non-assumpsit; and it was held that, the promise being collateral, it did make a debt, but should have been brought as an action on the case.

In Addison on Contracts, p. 36, it is said: "A distinction was "formerly taken between a promise to pay for goods supplied to a "third party, made before and after the delivery of such goods. "The former was held to be an original undertaking, and so not "within the statute, and the latter a collateral undertaking within "the statute; but this distinction has been decisively overruled, "and it is now holden, that if the person for whose use the goods "have been furnished is liable at all, any promise by a third person "to pay for them is a promise to answer for the debt of another, "and must be authenticated by writing, pursuant to the statute."

No case has been cited like the present, where the original contract was to answer for the debt or default of another; in all the cases referred to, the original transaction was between the parties themselves, and the original liability was a primary one.

This is an attempt to make two counts of assumpsit out of one promise; one on a guaranty, to pay the debt of another; the other on an indebitatus assumpsit, to pay a debt of the defendant's own. He cited Gould v. Coombe (b).

June 8.

Cur, adv. vult.

On this day, MONAHAN, C. J. delivered the judgment of the Court.

(a) 2 Ventr. 36

(b) 1 M. & Gr. 543; S. C. 14, L. J., C. P., 145.