Power v. Rankin

Citations

• 114 Ill. 52
• 29 N.E. 185

Syllabus

<p>1. Statute of Frauds—promise to pay the debt of another—of a new consideration—surrendering an existing security. Where the moving consideration for the promise to pay money is the liability of a third person, the promise must be in writing; but if there is a new consideration moving from the promisee to the promisor, then the superadded consideration makes it a new agreement, which is not within the Statute of Frauds.</p> <p>2. So where a party having a chattel mortgage upon a lot of corn, to secure a note of some $1200, relinquishes the same, and allows the corn to be sold and delivered by his debtor, in consideration that an agent, in whose hands $1000 was placed, had agreed to pay him that sum when the corn should be delivered, it was held, that the verbal promise to pay the holder of the chattel mortgage was not within the Statute of Frauds, and that an action would lie for a failure to make the payment.</p> <p>3. Common counts—when a recovery may be had thereunder—or whether the plaintiff must declare specially. Where the promise to pay money is a collateral undertaking, the declaration in an action for a failure to pay must be special; but when the promise is .an original undertaking, a recovery may be had under the common counts.</p> <p>4. So where the purchaser of a lot of corn gave a cheek for $1000 to the, defendant, to be held until corn to that amount was delivered, and then paid to the seller, and a party holding a chattel mortgage on the corn would not consent to its delivery until the defendant agreed and promised to pay the same to him, it was held, that the mortgagee to whom the promise was made might recover the $1000, under the common counts, after the delivery of the corn, such promise being regarded as an original undertaking, as distinguished from one that is merely collateral.</p>