Clay v. Walton

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring. The only question in this case for our consideration is whether the promise of the defendant is within the Statute of Frauds. The recollection of Williams of the language used by the defendant is not very clear. He does not pretend to give the precise words, and a slight mistake in this respect might have the effect of changing a promise, intended to be conditional and collateral, into an independent and original undertaking. But, if we assume that the language is accurately repeated by the witness, it is still insufficient to fasten a liability upon the defendant under the statute. It shows only a conditional promise, dependent upon the default of Williams, a promise as surety or guarantor of his contract. And if there be any doubt as to its import, we must look to all the circumstances of the case, to ascertain the intention of the parties at the time. The refusal of the plaintiffs to produce their books at the trial, after notice from the defendant, the form of the receipts for the money paid on account, and the affidavit in the attachment-suit, lead to the conclusion that the sale was made to Williams, and the promise of the defendant was intended to be conditional and dependent upon his default, and was so understood by the parties. It is difficult to perceive in what manner the plaintiffs can avoid the effect of their affidavit in the attachment-suit, as evidence that the contract of sale was made with Williams. Ho explanation of this affidavit is contained in the record, and the plaintiffs will hardly object that it is taken as true.

It is not clear whether the promise of the defendant preceded, or was subsequent to, the contract with Williams. If it preceded, or if it were concurrent with the principal contract, and constituted the main inducement to the credit given by the plaintiffs to Williams, it would be binding upon the defendant at common law. The consideration moving between the creditors, the plaintiffs, and the principal debtor, Williams, would be sufficient, and it would be immaterial whether the promise were direct and absolute, or conditional and dependent. . But, by the twelfth section of our Statute of Frauds, which is borrowed substantially from the fourth section of the English statute of 29 Oar. 2, every special promise to answer for the debt, default, or miscarriage of another, is void, unless some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged thereby; and the special promise in this case being to answer for the default of Williams, is directly within the provisions of this section, and is of course void. If the promise of the defendant were subsequent to the [334]