Opinion of the Court by
Justice Wilson.
The judgment of the court below is reversed, because it appears that the undertaking of Everett was only collateral, and as such, came within the statute of frauds and perjuries.
To this opinion of the court, Justice John Reynolds dissents., and delivers the following opinion.
The bill of exceptions in this case presents a state of facts not very satisfactory. It is really difficult to know if Everett be the security of Bailey or the principal in this transaction. But from the best consideration I am capable of bestowing on this case, I conclude that Everett was the person to whom the credit was given, and therefore liable. The witness states expressly that he would not give credit to Bailey, but that the credit was given to Everett, yet in the same deposition he says, Everett was the security of Bailey, and the charge is so made. There being no writing in the case, it was contended that Everett was not" liable, as it was within the statute of frauds and perjuries. I am of opinion, according to the whole state of facts as shown, that Everett is liable,
Blackwell, for appellant.
Kane, for appellee.
Judgment reversed.
Where the promise is an original undertaking it need not be in writing. 2 Johns, cas., 52. Where the promise to pay the debt of another is made at the same time with the contract to which it is collateral, it is incorporated into it and becomes a part of it—the whole is one entire contract, and the want of consideration, as between the plaintiff and the guaranty can not be alleged. 8 Johns., 29. If the whole credit is given to the person who comes in to answer for another, his undertaking is not collateral. Ibid. Per. Kent, Ch. Just.
Parties may make valid contracts, though not in writing, to pay the debt of another; but the new or original contract must be declared on; and this must be founded on a new and original consideration moving to the party making the promise, and the debt of the original debtor must not be the consideration for the promise. Hite v. Wells, 17 Ill., 88. See Scott v. Thomas, 1 Scam., 59.
A promise made by A. to B. to pay a debt which B. owes to C. is not within the statute of frauds. Prather v. Vineyard, 4 Gilm., 40. Eddy v. Roberts, 17 Ill., 505. Brown v. Strait et al., 19 Ill., 88. Bristow et al v. Lane et al., 21 Ill., 194.
A verbal contract, not to be performed within a year, will not sustain an action. Comstock v. Ward, 22 Ill., 248.
The statute of frauds is presumed to have been pleaded in an action before a justice of the peace. Id.
The statute of frauds in reference to parol contracts for the sale of lands, if relied on as a defense, must be pleaded, otherwise it will be held to be waived. Lear v. Choteau et al., 23 Ill., 39.