Gunnels v. Stewart

Decided May 15, 1812

Supreme Court of South Carolina · decided 1812-05-15

Motion to set aside a decree,- and order a nonsuit, in this case, which was a sum. pro., tried before Grimke, J., in York district. The cause of action was an account stated, viz., an assumption to pay a debt due by Bennet Moore, to the plaintiff, in consideration of discharging Moore from the payment of it. The defence was, that the promise was not in writing, and being to pay the debt of another, was within the statute of frauds, and void-.

Decided 1812-05-15

Brevard, J.

¶1My opinion is, that the motion ought to be granted. The consideration of the defendant’s promise was, the plaintiff’s promise to discharge Bennet Moore from a debt of twenty.five dollars, which was due by note of hand. From, the very nature of the contract, it is evident that Moore was to be completely discharged before the defendant would be liable. It was admitted at the trial that the note was in the plaintiff’s hands, and it did not appear that Moore was released, except by a mere declaration of the plaintiff that he discharged him.

¶2It seems to have been the intention of the contract, that the defendant was to pay Moore’s debt, in consideration of being indebted to him, (Moore.) There was no consideration as between the parties in this action, to oblige the defendant to pay Moore’s debt to the plaintiff.

¶3It is a case within the statute of frauds.

The court, Brevard, Nott, and Colcock, in the absence of Bat, and Smith, granted the motion.