Smith v. Fah , 54 Ky. 443 ( 1854 )

Judge Stites

delivered the opinion of the court—

Fah brought a petition against Smith and Shockley, in which he alleged, in substance, that he held a note on one Dash, for about $125, due in November, 1853; that, at the instance and request of Smith, he placed said note in the hands of Shockley for collection, upon the assurance of Smith, made at the time, that he, (Smith) would be responsible; that Shockley should collect the note, and, when collected, pay over the amount to him, Fah; that Shockley had collected the amount of the note and refused to pay it over, and that the note was given to Shockley only upon the assurance of Smith. Upon these allegations, and without referring to, exhibiting, or relying upon any writing, he prayed for judgment against Smith and Shockley for the amount of the note collected by the latter.

1. Under tie Revised Statutes an undertaking by parol • to be responsible for the faithful performance of another of his promises, is not binding unless it be in writing. (Revised Statutes, chap. 22, see. 1, page 192.)

Process having been served upon both defendants, and no defense being made, a joint judgment was rendered by default, to revesre which, as to Smith, he has appealed to this court.

Two questions are presented for consideration: 1. Is it apparent from the petition, that the undertaking of Smith to answer for the collection and payment of the money, by Shockley, is within the statute of frauds? 2. If it is, can Smith now avail himself of that defense, having failed, in any way, to rely upon it in the court below?

The Revised Statutes (chap. 22, sec. 1, page 192,) declares that “no action shall be brought to charge any person, 1. For a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, made with intent that such other may obtain, thereby, credit, money, or goods; unless the promise, contract, agreement, representation, assurance, or ratification, or some • memorandum or note thereof, be in writing, and signed, at the close thereof, by the party to be charged therewith, or by his authorized agent.”

It seems to us, that no rational construction can relieve the promise of Smith from the operation of the statute. No writing is exhibited or relied on. The assurance- is, that Smith will be responsible for the conduct of Shockley in collecting and paying over the amount of the note, and manifestly made with the design and intent to give credit to Shockley. Besides, Shockley is held bound by the plaintiff, and as settled by this court in several cases, wherever he for whose benefit the contract is made remains bound, the statute applies. (Armstrong vs. Flora, 3 Mon. 44; Waggener vs. Bells, 4 Mon. 9.)

2. If the plaintiff ’s petition does not show a promise i» wñting made by one, for the nndertaking of another, no judgmentcanberendered for failing to perform such Marshall ° ’4483 8 B. Monroe, 422,) though the defendant relyt0upoif the statute. (Code ^Practice, sec.

As to the necessity of setting up the statute in defense by plea or answer, there seems to be some conflict in the decisions, but a critical comparison of the cases will, in our opinion, show the rule to be, that the statute of Frauds need only be set up in defense by plea or answer, when it is not otherwise apparent that the alleged demand comes within its inhibitions. .

In Talbot vs. Bowen, 1 Mar. 325, one of the earliest cases involving the question, it did not appear from the bill nor answer, that the statute applied, an(j hence the observation of the court, as to the _ \ necessity of a reliance by plea or otherwise upon its . . provisions.

jn Fowler vs. Lewis, 3 Mar. 445, where the com- . plamant’s bill showed the case to be within the statute, and where, as in this case, a decree was rendered for ‘want of an answer, the point being direct- . . , . . , . .. , . iy raised m this court, it was said, in answer to the fa^ure rety upon the statute in the court below: “The circumstance of the defendant below having pajje¿ £0 plead and rely on the statute, cannot alter the case. The pleading of a matter in avoidance may be dispensed with, when the opposite side has exhibited enough to show that he cannot recover.”'

And in the more recent case of Bull vs. McRea, 8 B. Mon. 423, before the adoption of the Code, the same doctrine is clearly intimated.

The promise of Smith being then, in our opinion, within the statute, and this appearing from the petition, it follows, that nó sufficient cause of action was shown against him, and as an objection of this character is not waived by failure to answer or demur in the court below, (Code of Practice, sec. 123,) it must prove fatal here to the judgment as against Smith.

Wherefore, the judgment against the appellant, Smith, is reversed and cause remanded, with directions to the court below, to set it aside, and unless the plaintiff shall so amend as to present a right to recover, to dismiss the action as to him with costs. The judgment as to Shockley is not disturbed.