Vaughn v. Smith , 65 Iowa 579 ( 1885 )

Seevers, J.

It will be observed that the plaintiff did not allege in his petition that, in consideration of the promise of Smith & Co., he had lost his lien, or that he had released McPherson & Neely. Nor was there any evidence tending to show that he did so. On the contrary, the evidence tended to show that he filed his lien on the twenty-fourth day of October, 1879, and that he finished his contract in the month of September, and the court instructed the jury that the plaintiff had until the thirtieth of October to file his lien. There was evidence tending to establish the promise alleged in the petition, to which the defendants, Smith & Co., objected, on the ground that the promise was to “ pay the debt of another, and not in writing; ” but the objection was overruled and the evidence admitted, and the ruling of the court is assigned as error.

It will be assumed that the plaintiff was entitled to a mechanic’s lien on the road, and that he delayed to file it, and to give the notice required by law, until after the twentieth day of October. The debt for which the plaintiff could establish the lien was due from McPherson & Neely. Smith & Co', were in no manner bound for the debt prior to the agreement to pay. Is such promise within the statute of frauds ? In Brightman v. Hicks, 108 Mass., 246, it was said “that when property subject to a lien is transferred by the debtor to a third person, the latter is not liable to an action by the creditor, unless be has made a direct promise either to the debtor or the creditor to pay the debt, and that such a promise to a creditor who neither gives up his claim against the original debtor, nor any lien upon the property, is a promise to answer for the debt of another, and must be in writing in order to satisfy the statute of frauds.” See, also, Weisel v. Spence, 59 Wis., 301; Stewart v. Campbell, 58 Me., 439; Nelson v. Boynton, 44 Mass., 396; Mallory v. Gillett, 21 N. Y., 412.

As the plaintiff, in consideration of the promise, did not waive his lien, we are of the opinion that there was no new and independent consideration for the promise, and that, therefore, it is within the statute of frauds. The court, therefore, erred in the admission of oral evidence to establish the promise, and in refusing to grant a new trial on the ground that the evidence was insufficient to sustain the verdict. There was evidence tending to show that Smith & Co. had given a bond to the railway company “ as a protection against all liens filed,” and counsel for the appellee insist that, this being so, the debt Smith & Co. promised to pay was their own, and therefore the promise is not within the statute. It is said that the plaintiff could have maintained an action on the bond under the rule established in Jordan v. Kavanagh, 63 Iowa, 152, and Baker v. Bryan, 64 Id., 561.

It is sufficient to say that the bond is not before us, nor do we'know its terms and conditions. We cannot say that the plaintiff could maintain an action thereon, nor can we see, under the authorities above cited, that this fact is material, unless the plaintiff, in consideration of the promise, released or thereby lost his lien or right of action on the bond.

Reversed.