Bailey v. Marshall

Citations

• 174 Pa. 602
• 34 A. 326
• 1896 Pa. LEXIS 931

Syllabus

<p>Statute of frauds — Promise to pay the debt of another — Act of April 26, 1855.</p> <p>The act of April 26,1855, P. L. 308, which directs that “ no action shall be brought whereby to charge .... the defendant upon any special promise to answer for the debt or default of another unless the agreement .... shall be in writing,” was meant to relieve an alleged guarantor or surety; not to relieve one who had a personal beneficial interest in the assumption.</p> <p>As a general rule, when the leading object of the promise or agreement is to become guarantor or surety to the promisee for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after or at the time of the promise of the principal, is within the statute, and not binding unless evidenced by writing. On the other hand, when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.</p> <p>Plaintiff held a judgment note against P. for $1,000 with power of attorney to confess judgment. Defendant entered a judgment against P. for $5,000, issued execution and levied on all the real and personal property of P. The amount actually due and payable by P. to defendant was $200. Defendant, knowing of the existence of plaintiff’s judgment note, sent for her and said “ I will stand by thee, and see thee is paid every cent, if thee says nothing and does nothing.” Plaintiff did not enter her judgment, and at the sheriff’s sale defendant bought in the property, and was credited with the amount of his own judgment. Held, that the undertaking of defendant was not to pay P.’s debt, but his own, and that the plaintiff was entitled to recover from him the full amount of her judgment note.</p>