#### 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,

Eor 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 *80the 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 28, 1819.

Received of David Everett, $16.25, the amount of his account in the store at my house.

William Padfield,

for William Morrison.”

The witness, Padfield, testified that that 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 the 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 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 *81and perjuries. I am of opinion, according to the whole state of facts as shown, that Everett is liable, (a) (1)

Blackwell, for appellant.

Kane, for appellee.

Judgment reversed.

(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.