THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Massachusetts.
It was the same case which was before this court at a previous term, and is reported in 19 Howard, 224.
The substance of that case and the new view of the present one are fully stated in the opinion of the court, to which the reader is referred.
It was argued by Mr. Hutchins and Mr. Cushing for the plaintiff in error, and Mr. Bates for the defendant.
The points of the argument of the counsel for the plaintiff in error, which are material to be stated in the present report, were the following:
I. At common law, a contract reduced to writing may, by parol agreement of the parties subsequently made, be varied, waived, or discharged, whether the same is a simple contract, or under seal.
Browne on Statute of Frauds, sec. 409, (b) sec. 423.
1 Greenl. on Evidence, secs. 302, 304.
Snow v. Inhabitants of Ware, 13 Met., 42.
Marshall v. Baker, 1 Appleton, 402.
Ballard v. Walker, 3 Johns. Cases, 60.
Goss v. Lord Nugent, 5 Barn. and Adol., 65.
1 Phillips Ev., (Cowen and Hill's Ed.,) p. 563, w. 987.
Sherwin et al. v. Rut. and Bur. R. R., 24 Vt., 347.
Vicary v. Moore, 2 Watts, 451.
Besker et al. v. Troy and Rut. R. R., 27 Vt., 766.
Neil v. Chever, 1 Bailey, (S.C..,) 537.
Munroe v. Perkins, 9 Pick., 298.
White v. Parkin, 12 East., 578.
Fleming v. Gilbert, 3 Johns. Rep., 528.
Keating v. Price, 1 Johns. Cases, 22.
Low v. Treadwell, 3 Fairf., 441.
II. And there is no distinction in this respect between a contract in writing at common law, and a contract required to be in writing by the statute of frauds.
Browne on Statute of Frauds, sec. 423.
1 Greenl. on Ev., secs. 302, 304.
Cummings v. Arnold, 3 Met. 486.
Stearns v. Hall, 9 Cushing, 31.
Caff v. Penn, 1 M. and S., 26.
Goss v. Lord Nugent, 5 Barn. and Adol., 58.
VI. There is a fact in proof in this case, which did not appear in the case when before this court before-and that is, that when Slater made the agreement upon which suit is brought, securities were placed in his hands by the principal debtor to indemnify him for his liability. His promise is not, therefore, within the statute of frauds.
VII. A parol promise to pay the debt of another, in consideration of property placed by the debtor in the promissor's hands, is not within the statute of frauds. It is an original promise, and binding upon the promissor; and in this respect it is immaterial whether the liability of the original debtor continues or is discharged.
1 Browne on Statute of Frauds, sec. 187, p. 184.
Wait, appellant, v. Wait, 28 Vt., (2 Wash.,) 350.
Farley v. Cleveland, 4 Cowen, 432.
1 Smith's Leading Cases, 329.
Hindman v. Langford, 3 Strobhart's Rep., 207.
Cross v. Richardson, 30 Vt., 641.
Fisk v. Thomas, 5 Gray, 45.
Rand v. Mather, 11 Cushing, 1.
Olmstead v. Greenly, 18 Johns., 12.
Hilton v. Dinsmore, 21 Maine, (8 Shep.,) 410.
Cameron v. Clark, 11 Ala., 259.
Loring v. Lee, Spencer, (N. J.,) 337.
Goddard v. Mochbee, 5 Cranch C. C., 666.
Stanley v. Hendricks, 13 Iredell, (N. C.,) 86.
Lee v. Fontaine, 10 Ala., 755.
McKenzie v. Jackson, 4 Ala., 230.
Lippencott v. Ashfield, 4 Sandford, 611.
Westfall v. Parsons, 16 Barb., 645.
Todd v. Tobey, 29 Maine, 219.
VIII. The defendant having waived by parol the performance of the work at the day, thereby himself prevented performance, and he cannot avail himself of the non-performance.
Browne Stat. of Frauds, secs. 423, 424, 425, 436, p. 486.
3 Johnson N. Y., 531.
2 Selden N. Y., 203.
IX. When this case was before this court before, no question was made nor discussion had, whether the promise of the defendant was within the statute of frauds; the question was, simply, whether time was of the essence of the contract; and this court decided that it was.
Emerson v. Slater, 19 Howard, 224.
X. The evidence offered by the plaintiff in error, under the common counts, that the defendant in error had securities in his hands to indemnify him for his promise, took the case from the statute of frauds. It made him an original promissor for the work done after November 14, 1854, (the date of the contract,) and he is therefore liable upon the common counts upon a quantum meruit as an original debtor.
The counsel for the defendant in error contended that the decision of this court in the previous case involved the following propositions: