No. 14,057.

#### Cheesman *v.*Wiggins.

Statute of *Frauds.*— Promissory *Note.*— Joint Obligors.— *Verbal Agreement of Surely to Pay Co-Obligor’s Half.*— One of the joint obligors on a promissory note paid the entire note taking security from his co-obligor for his half, the surety verbally agreeing to stand as security for the coobligor’s one-half to the other obligor.

*Held,*that the verbal promise of the surety to indemnify the obligor against loss by his co-obligor’s failure to pay his half, amounted to a promise to pay the co-obligor’s half, and is within the statute of frauds and unenforceable.

From the Wayne Circuit Court.

*B. F. Mason*and *T. J. Study,*for appellant.

*L. I). Stubbs, H. G. Fox*and *J. F. Bobbins,*for appellee.

Olds, J.

The only question presented in this case is the sufficiency of the complaint.

The complaint alleges that the plaintiff and Andrus S. Wiggins, partners, were indebted to the First National Bank of Centerville, and the Citizens’ Bank of Eichmond, Indiana, in the sum of $11,000, which indebtedness was secured by notes executed by the plaintiff and said Andrus S. Wiggins, who were principals, and the defendant, Stephen B. Wiggins, as surety; that plaintiff and Andrus S. Wiggins made an agreement by which plaintiff was to borrow money and pay off said indebtedness, and Andrus S. Wiggins was to execute a mortgage to plaintiff on a farm owned by Andrus S., his wife joining, to secure to plaintiff the one-half of said indebtedness ; the said farm of Andrus S. having a prior mortgage on the same to the amount of $8,000. The wife of said Andrus refused to join in the mortgage to the plaintiff, and thereupon plaintiff declined to borrow the money and pay said indebtedness; and to induce said plaintiff to borrow the money and pay said indebtedness said defendant *353agreed that if the plaintiff would accept the mortgage executed by Andrus alone; his wife not joining, he, said defendant, would indemnify, or stand security, for the said Andrus for the one-half of the amount so to be paid by the plaintiff, and make good any loss sustained by the plaintiff by reason of the payment of the one-half of said indebtedness in case the plaintiff was unable to make the same out of said farm, and sustained any loss thereby; that plaintiff relied on said promise of the defendant, and executed his note to one Scott for the sum of $11,000, and the said Andrus S. Wiggins executed a mortgage to plaintiff on the farm of said Andrus S., and the plaintiff obtained the money on the note and paid said indebtedness; that he has paid ten thousand dollars in interest on said note; that the $8,000 prior mortgage on the farm of Andrus S. has been foreclosed and said farm sold, and said Andrus S. is insolvent. Prayer for judgment against the defendant.

A demurrer for want of facts was sustained to the complaint, and the ruling of the court on the demurrer is assigned as error.

There is no error in the-ruling of the court. The defendant was the security of the plaintiff and Andrus S. Wiggins for the indebtedness paid off by the money borrowed. The defendant was liable as security for said indebtedness; if he had been compelled to pay the whole, or any part of the same the plaintiff and Andrus S. Wiggins would each have been liable to him for the amount paid by him. As between the defendant and the plaintiff the plaintiff was liable for the full amount of said indebtedness. It is not alleged that the agreement made by the defendant is in writing, and no copy of it is set out, and therefore it must be treated as resting in parol. The gist of the proposition stated in the complaint amounts to this : That the plaintiff paid a debt for which he and Andrus S. Wiggins were each liable to pay, taking security from Andrus S. Wiggins for his one-half, *354the defendant verbally agreeing to stand as security for Andrus S. Wiggins to plaintiff for Andrus S. Wiggins’ one-half. As between the defendant and the plaintiff, the plaintiff did no more than he was liable to do, and bound to do, in the absence of the agreement. He paid the debt which, as between him and the defendant, he was bound to pay.

It does not appear by the complaint but that plaintiff was abundantly responsible for the payment of the indebtedness, or that any change has táken place in the financial condition of Andrus S., or that his fárm was worth more than the amount of the prior mortgage, or that any benefit would have been derived from the wife signing the mortgage; indeed, the averments amount to a simple verbal agreement on the part of the defendant to pay or become surety for the payment of the debt of another, and is within the statutes of frauds, section 4904 providing that no action shall be brought to charge any person, upon any special promise, to answer for the debt, default or miscai’riage of another, unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, etc. *Wolke*v. *Fleming,*103 Ind. 105; *Hassinger*v. Newman, 83 Ind. 121; *Wills*v. *Ross,*77 Ind. 1 (4); *Smock*v. *Brush,*62 Ind. 156.

In Brandt Suretyship, section 45, it is said: “ When the promise to indemnify is in fact a promise to pay the debt of another, then clearly such promise is within the statute, and the fact that it is in form a promise to indemnify will make no difference.”

In Baylies Sureties and Guarantors, p. 70, it is stated: “Where a person makes a promise to pay the debt of another for the purpose of obtaining the release of the person or property of the debtor, or other forbearance or benefit to him, the promise is within the statute of frauds.” Also, *“*If a person promises to pay the debt of another, if not paid by himself, and the creditor is thereby induced to suffer the *355■debtor to leave the State, taking his property with him, the case falls within the statute.”

Filed Feb. 28, 1890.

The promise of the defendant, as alleged in the complaint, is no more than a promise to pay the debt of Andrus S. Wiggins if not paid by himself, or an agreement of indemnity, by which defendant agreed to indemnify the plaintiff against loss by the failure of Andrus S. Wiggins to pay his half of the partnership debt, by agreeing to pay it if Andrus S. did not.

The demurrer to the complaint was properly sustained.

Judgment affirmed, with costs.