Eckman & Vetsburg, Appellants, vs. S. Brash & Son, Appellees, 20 Fla. 763

The Chiee-Justice delivered the opinion of the court. The statute reads, that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, unless the agreement or promise upon which such action, shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized. The paper signed by the defendants offered here to sustain the plaintiffs’ declaration does not contain a promise to pay the debt of H.

Brash, due to plaintiffs. It .is admitted: by the pleadings of both parties that Mr. "Deitsch is the agent of Eckman & Yetsburg, and that “Eckman and Y.,” in the paper offered, means Eckman & Yetsburg, the plaintiffs. It is also admitted that “Apala” in the writing means Apalachicola; and it is further admitted that the sum of forty-nine dollars and sixty-five cents was paid by Mr. Deitsch in behalf of Eckman & Yetsburg to Henry Brash, of the firm of S. Brash & Son, as stated in the paper signed S. Brash & Son, at the date thereof.

The memorandum then is as follows: “ Received of Eckman & Yetsburg, forty-nine and sixty-five one-hundredth dollars, as commission for guarantee of H. Brash’s Apalachicola account, which account has been settled by him in full with note. “(Signed) S. Bkash & Son.” The plain English of this is that there had been a guaranty by defendants of some sort, to the plaintiffs, of an account of H. Brash. Whether it was a guaranty of payment, or that it was collectable, or that H. Brash would settle it by note or otherwise, or what was its amount, is not stated. The guaranty itself is not exhibited.

And now, on the 11th of March, 1882, H. Brash, having settled his account with Eckman & Yetsburg by giving them his note in full, the. latter pay to S. Brash & Son a commission for the guaranty and get from them this receipt showing such payment. This seems to be a closing up and settlement between these parties of the entire transaction. This paper certainly does not contain an engagement to pay plaintiffs any sum of money due from II• Brash by note.

The “ account” which had been guaranteed has been settled in full by him “ by note.” The two notes set out as a bill of particulars are not mentioned in the receipt and it cannot be presumed that they constitute the note mentioned therein, because the receipt does not speak of two notes. Parol testimony would be necessary to show that these two notes were intended to be referred to, and parol testimony is inadmissible to show the terms of the agreement. Most clearly then there was no agreement in writing signed by these defendants to pay H. Brash’s notes.

It was attempted to show by the letters of one or both of the defendants, that this paper was intended to he, and was, a guarantee or promise. The judge at the trial ruled that the letters and the receipt taken together did not take the case out of the statute. We cannot discover that the court erred in this conclusion. The letters do not contain a promise but expressly deny any liability, and deny that. any liability was intended to be created by the writing, and insist that the paper was unfairly obtained from them.

It is true they became frightened soon after the paper was signed, lest it might be considered a valid promise binding them to pay, but they uniformly claim in the letters that they never intended to make a promise to pay. No liability therefore grows out of the letters, as a promise to pay, by themselves, or in connection with the receipt. Indeed, some of the letters state that the money mentioned as commissions was voluntarily urged upon them by Mr. Deitsch, he claiming that plaintiffs owed it to them upon a prior guaranty of the account. This view accords with a legitimate construction of the receipt.

It is claimed that the court committed an error in refusing to permit plaintiffs to prove by the witness, Deitsch, the circumstances under which the receipt was given, and the money paid. No offer was made to prove any fact not admitted in the pleadings. It is difficult to imagine any material circumstances other than those gathered from the pleadings of the parties, which can be shown without altering or adding to the terras of the paper itself. In the light of the concurrence of facts stated in the pleadings by the parties the paper is intelligible.

Any parol testimony which would convert it into a promise to pay the debt of another person would change the contract and convert it into something which it is not. “ If the agreement is certain and explained in writing, signed by the parties, that binds them ; if not, and evidence is necessary to prove what the termá were, to admit it would effectually break in upon the statute, and introduce all the mischiefs, inconvenience and uncertainty the statute was designed to prevent.” Brodie vs. St. Paul, 1 Ves., Jr., 326.

Every agreement which is required to be in writing by the statute of frauds must be certain in itself, of capable of being made so by a reference to something else whereof the terms can be ascertained with reasonable ' certainty without recourse to parol proof, or it will not be carried into effect. Braden vs. Bradlea, 12 Ves., 466; Abeel vs. Radcliff, 13 Johns., 297; Ide & Smith vs. Stanton, 15 Vt., 685; Bailey vs. Ogden, 3 Johns., 399; Peltier vs. Collins, 3 Wend., 457.

The doctrine of the courts in the application of the statute of frauds is, that a promise by a defendant to pay the debt of another must be wholly in writing, and if parol evidence is necessary to an understanding of the terms of the entire contract with reasonable certainty ; if its terms must be supplied by parol, it is within the statute and cannot be enforced.

While it is permitted to prove the circumstances under which a contract was made, it is not manifest that all material circumstances were not before the court, or that the terms of the agreement were not clearly understood by the concurrent averments of the pleadings. It is insisted that the receipt offered in evidence shows that the defendants have received plaintiffs’ money, which the verdict of the jury enables them to retain, and that the jury ought at least to have found the amount in favor of plaintiffs. It does not appear that any such claim was made before the court and jury.

It was first suggested in the motion for a new trial. There is no count in the declaration under which a return of that money could be claimed. It is not a claim for goods sold and delivered; nor for money paid by plaintiffs for and at request of defendants; nor for money due on account stated. The jury were-charged by thé court that there was no evidence before them in support of the plaintiffs’ declaration and no exception was taken to the charge.

In fact the receipt itself implies that the money, $49.65, was paid for commissions upon a guaranty of an account, which account had been settled in full by the note of the debtor. No error is apparent in the record, and the judgment is affirmed.