Combs v. Harshaw, 63 N.C. 198 (1869)

Jan. 1869 · Supreme Court of North Carolina

63 N.C. 198

JESSE COMBS v. JOSHUA HARSHAW.

A promise by a third person to answer for tbe debt of' another, which» other is not thereupon discharged from all liability — is within the Statute of Frauds, and must be in writing.

That there is a consideration for such promise, does not affect this rule.

('Draughan y. Bunting 9 Ire. 10; Stanley v. Sendi-icJcs 13 Ire. 86, cited and; approved.)

Case, tried before Cminon, J. at Fall Term 1868 of tbe-. Superior Court of Cheroxee.

Tbe facts were that in 1864, a son of tbe defendant, wbo was-under age, and a soldier in tbe Confederate service, in company with other soldiers, met tbe plaintiff in tbe road, and forcibly took from bim bis horse. After tbe termination of' the war, Harshaw, in consequence of this and other acts, left bis father’s bouse in Cherokee County. Tbe plaintiff demanded payment for bis horse from tbe defendant, wbo promised, that, if tbe former would allow bis son to come borne, be (tbe defendant) would refer tbe matter to some neighbors, wbo should, say what ought to be done. Afterwards tbe defendant refused to refer, and tbe plaintiff brought this suit.

Under tbe charge of bis Honor there was a verdict for tbe plaintiff. Tbe defendant moved for a new trial, which was-refused; and be appealed.

Phillips & Merrimon, for tbe appellant.

No counsel, contra.

Settle, J.

(After stating tbe case as above.) Passing by tbe objection that tbe agreement to refer is too vague and. uncertain to found an action upon, we will consider tbe point, made on the trial below.

Does this promise come within tbe provisions of tbe statute of frauds ?

When there is an existing cause of action between two parties, and a third party merely adds bis parol - promise to the-subsisting liability, without tbe original cause of action being-discharged, bis promise falls within tbe statute, and cannot be-enforced. Draughan v. Bunting, 9 Ire. 10, and Stanley, et al. v. Hendricks, 18 Ire. 86.

■ Here tbe plaintiff bad a canse of action against young Har-sbaw, which, it is not pretended was released by the agreement to refer. The father, being in no way responsible, super-added his promise to the liability of his son.

His Honor held, that this being a new promise, and supported by a sufficient consideration, the plaintiff was entitled to recover.

Although a new promise on the part of the father, it was not substituted for the liability of the son, and did not release the son from his accountability to the plaintiff. It is said here, that there was a new consideration for the promise of the defendant. Admit that there was, and it does not help the plaintiff.

In the cases above cited, it is said that “it required no statute to make void a promise, not founded upon a consideration. It is only in cases where there is a consideration to support the promise, that the statute of frauds must be called into action. ”

Pee Cueiam. Venire de novo.