St. Clair County IL Archives Court.....Everett, Vs. Morrison 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:14 pm

Source: Reports Of Cases Illinois
Written: 1819-31

NOVEMBER TERM, 1823. Vandalia.


David Everett, Appellant, v. William Morrison, Appellee.

Appeal from St. Clair.

An undertaking by parol by which a third person obtains credit, is collateral, 
within the statute of frauds and perjuries, and not binding.

This case came into the circuit court of St. Clair county by appeal from the 
judgment of a justice of the peace in favor of Everett against Morrison. The 
circuit court reversed the judgment of the justice and gave judgment in favor 
of Morrison, and from which Everett appealed to this court. The bill of 
exceptions taken on the trial in the circuit court, presents the following 
state of facts: William Padfield, a witness sworn on the part of Morrison, 
stated that in August, 1817, he was selling goods as agent for Morrison, at 
witness' house in St. Clair county—that Bailey applied to witness to purchase 
goods on credit, which was refused. Bailey then produced Everett, who agreed 
to go Bailey's security for the amount of goods Bailey wanted, with which 
agreement witness was satisfied, and sold to Bailey goods out of the store to 
the amount of the account sued on, to wit:

"August 9, 1817. Isaac J. Bailey, Dr.
To William Morrison, For goods delivered by William Padfield—David 
Everett, security. . . . . $46.50
William Padfield, sen'r. 

Witness told Everett that he would charge the goods to Bailey, and set him, 
Everett, down as security, which he accordingly did by charging the goods to 
Bailey in a book, and placing the name of "David Everett, security," at the 
top of the account. Witness stated that he would not have given credit to 
Bailey for the goods, but sold them on the credit of Everett. The goods were 
sold on a credit of four or six months. Bailey remained in the county about 
eighteen months after the sale, but no attempt was made by Morrison to coerce 
payment from him. On the part of the defendant it was proved that sometime in 
the summer of 1819, at the house of Padfield, Everett told Padfield that 
Bailey was then in St Clair county, and had property enough to pay the debt, 
and desired Padfield to coerce payment; and Robert Thomas proved that early in 
that summer he was at Padfield's and saw Bailey there with a valuable horse, 
which witness knew to be the property of Bailey, and that Bailey also had a 
wagon load of flour, &c. Everett also offered in evidence this receipt:

"August 23, 1819. Received of David Evekett,  $16.25, the amount of his 
account in the store at my house.
William Padfield, for William Morrison." 

The witness, Padfield, testified that the receipt embraced only Everett's 
private account. This was all the evidence in the cause; upon which Everett 
insisted that his undertaking being by parol, was within the statute of frauds 
and perjuries, and not binding. The court, however, gave judgment for 
Morrison, to reverse which Everett appealed, and assigned for error of 
misdirection of the court in deciding that he was liable on the undertaking as 
above set forth.

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 it Everett be the scurity 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 disposition 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. (a) (1)

Judgment reversed.

Blackwell, for appellant. Kane, for appellee.

------------------
(a) 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.

(1) 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.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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