OCR Text |
Show SUPREME COURT. Opinion of Associata Justice Emerson. What Law is Applicable in this Territory. First National Bank of Utah, A Corporation, Supremo Court Plaintiff, - of rs. Utah Territory. M. Kinner, Defendant. J Marshal and Roy!c for Plaintill. Robertson and McBridc for Defendant. Defend-ant. 1'INIOX 01' EMiikSON, .1. This case comes up on appeal on the part of the defendant from a judgment of tho Third District Court overuling the demurrer to the complaint. com-plaint. As shown by the record tho caso is substantially as follows: On the UUU of March, 1872, Nounnan and Gilmer Gil-mer made their joint promissory noto by wdiieh, for valuo received, they promised to pay to the order of A. Ciotlbe, cashier of the plaintiff corporation, corpor-ation, lil'teen hundred dollars, on the ii rat day of September, A. D. 1872, with interest at two per cent, per month. This note was delivered to and discounted dis-counted by the bank, and on the 7th of May following, and before maturity, matur-ity, was taken up by Xounnan, one ol the makers. On the succeeding 7th of June, and when nearly three months of the current time of Lhc note remained unspent, Nomina n reproduced repro-duced it to the bank, and at his request re-quest they rc-discounted it. When it became due and payable according to its tenor, Nounnan applied to tho bank for an extension until the 1st ol January, A. D. lS7o. The extension w.is agreed upon, but as a part of this . arrangement tho defendant was to guarantee the payment of the noto at the expiration of the time agreed upon. up-on. The compUiut states that the defendant, with full knowledge of such agreement, "and for a valuable consideration to him moving, as well as in further consideration of the said extension of time, did guarantee, tho payment of said note," in the follow-I follow-I ing terms "For value received I ' hereby guarantee the payment of the : within note." ! The complaint sets up the carrying out of the agreement 011 the part of ' Lin: lank, and the failure of the payment. pay-ment. The suit is on the guaranty. I The defendant denim's, and the ; only nmtter of consequence arising on ' the demurrer is the validity of the guaranty. Upon the face ol tho complaint com-plaint the wriuen undertaking does ( not specify the time when the pay-; pay-; nient was to bo made, and does not I explain the consideration. If the i case was on trial and verbal evidence 1 should be oflercd that the agreement 1 was for payment on the 1st day of 'January, A. D. lS7'.ir there would be ' tome ground for the objection that it i was proposed to vary the legal effect I or the writing by parol since, as the j note was part duo, the written guaranty guar-anty would import an agreement to ! pay in a reasonable time, and not on the 1st day of January, A. D. 1873. J There is a peculiarity about this proceeding that impressed me from ; the very outset, aud which was not ' removed at the close of the elaborate argument of counsel, j Taking it for grunted that the de- fendant intended Lo go upon tho idea ! that the doctrine applicable, where j the statute of frauds prevails should i!,v ho can rai.-o the question sup-t sup-t posed lo be aimed at, by resorting to a j demurrer, to the complaint. Whenever" When-ever" the statute ol fraud ? is recog-j j ni ml, or in force, so far as I know, 1 thu plaintiff is not required lo set ( forth that the guaranty was in writ-j writ-j ing and signed, etc. It is considered I as a matter of evidence, and the want of it :is a matter ol defence. 1 Jf the defendantdemurs he thereby confesses that the agreement was in writing and he precludes the plaintiff Ironi giving legal evidence. (Gould's Plead, clip. 4, ss. 4o; 2 Sampler's Plead, and Ev. olO; Campbell vs. Wileox, 10 Wall. PJl. Waiving this consideration how ought the case lo be viewed. The demurrer is understood a3 uii-I uii-I lying two general propositions. The lin-l is that the essential portion of that branch of tho statute of frauds wbii'h relates to guarantees is iu force in this Territory as common law. Tne second is, that by force of that law the defendant's undertaking as set forth was not binding. The second proposition may bo first considered. Kimnniii" I. ho. nrinrinlcs of tho stat ute o ho law in this Territory, it is icquisitc to asceiuiiii wlmt (hev are so far ;is they could be held to bear on this case. Jt m:iy be assumed that tho operation opera-tion of the statute, admitting it to be recognized as common law, is to save any one from being charged upon a promise to answer for the debt, default de-fault or miscarriage of another, unless the agreement lo so answer is iu writing signed by lhc guarantor or by his authority. This statement is intended in-tended to .recognize the statute as most stringently framed and 95: pounded. hi 6omo of the States, Michigan among the number, lhc consideration, is not required to bo expressed in the writing. Iu England and in the State ol New York it must be in it. According to the exposition of ihc statute in Ri;;y elates, where it is most rigidly applied, it has been held that if the object of the guaranty is a brnelil to the guarantor which he did not before possess, a benefit aerueiug immediately to himself, and the basis far bis undertaking is a coivd deration, going directly tu him, the ease is not whh'tn vhe statute. This doctrine, is stated with great precision by Chief Justice Savage in Farly . Cleveland 1 Cow. -io'2; and S C. in wror ') Cow. ')'. Referring to those cases which he says do not (all within the sbttutc, and arc within the third class of cases, as this branch of tho statute of frauds was divided and eliissitied by Chief Justice Kent, iu Leonard w. Brcdcnburg, (S John ho observes, 'Tn all those cases founded on a new and original consideration of benefit to the defendant, or harm to the plaiutiii; moving to the party making the promise, either from tho plaintd! or original cieOLOV, tne suuaisung nubility nu-bility of the original debtor is no objection ob-jection to a recovery." In the case just referred to tS. C. in error 0 Cow. 030.) the reporter's note expresses the doctrine of the decision in very clear and concise language. It is as follows: fol-lows: "Where promise to pay the debt ofa third person arises out of some new consideration of benefit to the promisor, or harm to the promLseo, moving to the promisor either from tho promisee or the original debtor, such promise is not within the statute of frauds, although al-though the original debt still subsists 1 and remains entirely unaffected , by 1 the now agreement. See Mallory vs. Gillett, 21 N. Y. 412; Fusbush vs. I Goodnow, 98 Mass. i-9G; Nelson vs. Boynton, 3 Met., 306; where the ' doctrine is rnuoh considered. In , as much as upon a fair ' construction of this complaint, ; it must bo held that it alleges " a benefit to tho defendant, and a new consideration going to liim, as a basis for his promise. I was at first inclined 'to the opinion that the doctrine as alove Blatcd apnlied to 1 the case mado by tho complai But upon a more careful study of the cases referred lo, with a more exten-sivo exten-sivo comparison with other decided cases. I am satisfied, that, admitting admit-ting tho statute of fraiKa to bo in force, tiio case made by tho com paint would come within it. In all tho above cases tho plainlifi surrendered and tho defendant rt-ceived, rt-ceived, a fund or security charged ' with the payment of the plaintiffs debt, and all come within the class ot Wiilliams v.. Leper 3 Bun. 1S80, which iu thostarting point in all this class of cases; and Castling jj.v.Aubcrt 2 K.ist. -i-o , which followed it, and upon tho same ground with them, were no doubt properly held not to fall within the statute. I have found no case where tho parol promise of one to pay the subsisting debt of another, has been sustained by the courts upon any other consideration than the receipt of some fund or security se-curity cither from the debtor or creditor charged with tho payment of the debt. So that in making the piymcnt of the debt he was really fulfilling an obligation of bis own. It seems to me that to carry the doctrine so far as to apply it to the case nuide by the eomplaint,anil that it is not within the statute, would he virtually a repeal of the statute. Donnan, C. J. in in Green vs. Cress-well Cress-well 10 Ad. and Ellis 433. Iu regard to tho promise to pay money, which goes in discharge of the subsisting debt of another, the tho truo test, whether within the statute or not, is that it is made and accepted by the creditor as an original or-iginal undertaking and not merely as subsidiary to that of another. In the present case I regard tho defendant's defen-dant's promiso as one for tho payment pay-ment of a preexisting and still sub-nisting sub-nisting debt of another, and therefore there-fore within the terms of tho statute. If the effect of the promise or cou-traetof cou-traetof thedefendant had been to discharge dis-charge tho original debt and ho become be-come the sole debtor, and there was no debt ot another to which his promise prom-ise was collateral, then the contract was not within the purposo and spirit of the statute and it need not have been in writing. Tho complaint, com-plaint, as before said, alleges the contract to have been in writing, and lite demurrer admits it. Even where the statute is 1no.1t stringently applied it is held that tho words "value re-eeved" re-eeved" sufficiently explain lhc consideration con-sideration going to tho guarantor. Doughs ev. Howland 24 Word 35, Miller vs. Cook 2:) N. Y. 40o. But however" this may be, what opinion ought to bo found of the proposition, that this branch of tho statute of frauds is in substance a part of the ' Territorial laws. In American Insurance Co. vs Canter (I Pet. oil) the court by Judge Marshal, say substantially that Lhc laws of Florida as they were when the Territory was ceded, so far as not inconsistent with the constitution and laws of the United States, continued in force until altered by the newly created power of the State. Sec also United States vs. Powers (11 How. ,570, S t rathe rs vs. Lucas (.12 Pet. 410,420). This appears to be the settled doctrine in regard to conquered conquer-ed and coded territory, iu the absence ab-sence of snccial treaty stipulations. It applies "to territory acquired from Mexico, since the treaty of Guadtdoupe made no special provision on the subject. sub-ject. Utah was embraced in that acquisition. As in Florida, the preexisting pre-existing law was f-panish, so in Utah it was 'Mexican; and in both cases the laws wero derived mainly Irom the laws of Rome, in neither did the ii. .v .. l.iu ,ir tint ntjUilo ttf frauds prevail. Congress made no speci.il change, and the Territorial legislature, upon whom authority wus conlerretl, have made no express enactment upon the subject. This Territory wai first settled in 1S17, and from that time up to the acquisition and .treaty in IS IS, the settlers were comparatively few in number. There were 110 settled laws, usages aud customs among them. They came here as American citizens, under the flag and claiming tho pro-protection pro-protection of the United States government. gov-ernment. The particular class of persons forming the greater, if not entire, hulk of emigrants claim to have furnished troops Jrotn among their own numbers to assist this government gov-ernment in its war against Mexico. At the time of the acquisition aud treaty they could not claim Mexican citizenship, and have never adopted iU laws and customs. Soon after the change of sovereignty sovereign-ty by the treaty, emigrants in large numbers flocked from the States and surrounding Territories, and for many veal's there has been unorganized community. When wo turn to the communities communi-ties Irom whenco theso emigrants proeceLi.1, wc find that they differed : one from another moro or 1lbS in re-: re-: gard lo their laws and institutions. "o two are alike, hi thu most it is I true, many common law pi inciples 1 and doctrines were in force. Still the body of the common law in each was peculiar to tho particular state, and it was rather the common law of Lhc state than the English common law. In some tho Etu'lLh statutes had be.cn received as common law, in others not. These divcisit'ies make it impossible to assume that any specific body of the common law was transplanted to the Territory by Lhc fact of emigration. But one course was open, and that was for the whole body of the people to agree cxprevsly or tacitly upon a common nieaL-ure. II w.is to be expected ex-pected that the emigrants would not be contented with the loose ami alien institutions of an outlying Mexican department, and they have not been. They have ta.atly agreed upon maxims and principles of Ihc common com-mon suited to their conditions and consistent with tho constitution and laws of the United States. And these only wait recognition by the courts to become tho common law of tho Territory. When so recognized Ihov arc laws ;is certainly as if ex-pres.-ly adopud by tho lawmaking power. Tho judgement of the court below is affirmed, 'and a rcmittiter ordered Lo issue forthwith to tho Third District Dis-trict Court, the defendant to have ten days after notice served upon him or his attorney of lbs filing of the reminder re-minder in' that court to answer the complaint. McKkak and Bokkman, J. J., concurred. |