#### The Eagle Mowing & Reaping Machine Company vs. Shattuck and another.

*November 5*

November *22, 1881.*

*Statute of Frauds: Guaranty.*

Where a debtor induces his creditor to take in settlement of the indebtedness the note of a third person, with such debtor’s guaranty of its payment, not stating the consideration, this is in effect a promise by such debtor to pay his own debt in a particular manner, and is not within the statute of frauds.

APPEAL from the Circuit Court for *Kewaunee*County.

The defendants were agents of the plaintiff, under a written contract, for the sale of certain machines in the territory named, and were to receive for their commission and in full payment all over certain specified priees; and they agreed to turn over to the plaintiff the balance of the notes and cash received for such machines, at the end of the season. Upon an accounting, October 11, 1876, it was found that the defendants were short nearly $100, having neither money nor notes on hand, taken on the sale of such machines, with which to pay the amount due from them to the plaintiff upon their contract. Finally, the plaintiff received a note, dated May 25, 1876, written upon one of the plaintiff’s blanks, payable to the plaintiff or order. This note had not been taken for any machine furnished by the plaintiff, but for other property sold to the maker, one McNally, by the' defendants, and was not accompanied by any property statement, as required by the contract; and for these reasons the plaintiff at first objected to receiving the same, but was finally induced to take it upon the defendants guarantying it upon the back in these words: “"We or either of us guaranty the payment of the within note. L. Shattuok and H. Sohimling.-” The complaint in this action was upon the written contract first mentioned, as well as the guaranty, and the evidence established the facts above *456stated. The court rendered a judgment of nonsuit, from which the plaintiff appealed.

For the appellant there was a brief by *Timlin do Hanseau,*and oral argument by *Mr. Timlin.*

For the respondent there was a brief by *It. L. Wing,*and oral argument by *Ed. E. Bryant.*

Cassoday, J.

Section 2307, R. S., among other things, provides, in effect, that “ every special promise to answer for the debt, default or miscarriage of another person, . . . shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party charged therewith.” This statute has been in force for many years. Section 2, ch. 107, R. S. 1858. This conrt, as well as others, has frequently held that no “special promise to answer for the debt, default or miscarriage of another person ” can be enforced unless it be in writing, subscribed by the party, and expressing a consideration. *Taylor v. Pratt,*3 Wis., 674; *Reynolds v. Carpenter,*3 Pinney, 34; *Day v. Elmore,*4 Wis., 190; *Houghton v. Ely,*26 Wis., 181; *Parry v. Spikes,*49 Wis., 384. But can it here be reasonably claimed that the promise of the defendants, sued upon, was to answer for the debt, default or miscarriage of another person? At the time of the accounting and settlement of the defendants with the agent, the maker of the note in question was not indebted to the plaintiff, but to the defendants. The note was not given for property belonging to or furnished by the plaintiff, but for property belonging to and furnished by the defendants. The note at the time was the property of the defendants.

The defendants being indebted to the plaintiff for money or notes taken for the plaintiff’s machines, and by them converted to their own use, turned out the note in question, with their guaranty upon it, as their own property, in payment of their own debt. Are they to be discharged of their debt with*457out being held liable on their guaranty? Does the case come within the language or meaning of the statute? Was the promise of the defendants anything more than a pi’omise to pay their own debt in the manner stated? We think it was not, and the ease, therefore, comes clearly within the rule of *Wyman v. Goodrich,*26 Wis., 21, where it was held that “ where the owner of a note, as part of the terms of sale thereof, guaranties its payment, his contract is not within the statute of frauds.” It was not the consideration'of the note which was the basis of the promise of the defendants to the plaintiff, but the money or property of the plaintiff, which the defendants had converted to their own use, and which they undertook to pay by the transfer of the note with their guaranty upon it. It was in form a guaranty of the payment of the note, but the guaranty was in fact made in payment of their own debt. Such a ease is neither within the letter nor spirit of the statute, as abundantly appears from the decisions of this court, and cases therein cited. *Dyer v.*Gibson, 16 Wis., 557; *Putney v.*Farnham, 27 Wis., 187; *Young v.*French, 35 Wis., 111. See also *Barker v. Scudder,*56 Mo., 272; *Hall v. Rog*ers, 7 Humph., 536; *Fowler v. Clearwater,*35 Barb., 143.

*By the*Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.