the Statute of Frauds. Brief for the Appellee. Hurd's Stat. 1881, sec. 1, chap. 59; Owen v. Stevens, 78 Ill. 462; Laidlow v. Hatchett, 75 id. 11; Frane v. August, 88 id. 424. The promises declared on by the common counts could only be original promises, whereas these promises of Power, if he made them, were purely collateral promises, and being such, would have to be declared upon specially, in order to make the evidence proper under them. Maxwell v. Longnecker, 89 Ill. 102; Coal Co. v. Hood, 77 id. 68; Durant v. Rogers, 71 id. 121. The promise or contract upon which the common counts are based, would be such as the law implies. An implied contract, however, will only arise in the absence of an express contract. Compton v. Payne, 69 Ill. 354. Messrs. PATTON & HAMILTON, for the appellee: Where the leading object of the undertaking is to promote some object of the party's own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another. Wilson v. Bevans, 58 Ill. 232; Clifford v. Luhring, 69 id. 401; Scott v. White, 71 id. 287; Bunting v. Darbeyshire, 75 id. 408; Borchsenius v. Canutson, 100 id. 82. If there is a new consideration moving from the promisee to the promisor, as, when he gives up some lien or security, then the superadded consideration makes it a new agreement, for the performance of which no third person is liable, and it does not fall within the statute. Scott v. Thomas, 1 Scam. 58; Curtis v. Brown, 5 Cush. 491; Nelson v. Boynton, 3 Metc. 396; Smith v. Sayward, 5 Greenlf. 504; Boyce v. Owen, 2 McCord, 208; King v. Despard, 5 Wend. 277; Calkins v. Chandler, 36 Mich. 320. An oral promise to pay the debt of another out of his property placed in the hands of the promisor for that purpose, is not within the Statute of Frauds. Mason v. Wilson, 84 Opinion of the Court. N. C. 51; Almstead v. Gouls, 18 Johns. 12; Wait v. Wait, 28 Vt. 350. Power agreed to pay the $1000 to Rankin peremptorily and absolutely, and nothing remained for him to do but to pay the money, and the common counts were sufficient. Childs v. Fischer, 52 Ill. 167; Jackson v. Hall, 53 id. 440; Runde v. Runde, 59 id. 98. The principle is this: When, in consideration of the promise to pay the debt of another, the defendant receives property and realizes the proceeds, the promise is not within the mischief provided against, and the plaintiff may recover on the promise, or in an action for money had and received." See Stanley v. Heddick, 13 Ired. 86, quoted in Mason v. Wilson, 84 N. C. 51. Mr. JUSTICE CRAIG delivered the opinion of the Court: This was an action of assumpsit, brought by William L. Rankin, against James E. Power, to recover $1000, which it is alleged Power agreed to pay in consideration that Rankin would permit certain corn, upon which he held a mortgage, to be delivered to a certain person to whom the corn had been sold by Mrs. Glasscock. Rankin recovered a judgment in the circuit court for the amount claimed, and that judgment was affirmed in the Appellate Court. After the plaintiff had concluded his evidence, the defendant entered a motion to exclude the evidence from the jury. The court overruled the motion, and this decision of the court is relied upon as error. The main ground relied upon in support of the motion is, that the admitted evidence established merely a verbal promise to pay the debt of another, and was therefore void under the Statute of Frauds. We do not concur in the view taken by appellant's counsel. As we understand the testimony, in the fall of 1881 Mrs. Glasscock was indebted to Rankin on a certain note for $1249, bearing date November 16, 1881, and Opinion of the Court. due October 1, 1882. The payment of the note was secured by a chattel mortgage on a crop of corn raised that season. In the summer of 1882, Mrs. Glasscock contracted the corn to Ulrich, who gave Power a check for $1000, which he was to hold until one thousand dollars' worth of the corn should be delivered, when the money was to be paid to Mrs. Glasscock, or her order. After the check was placed in the hands of Power, and before any of the corn was delivered, Rankin and Power met at the office of Mr. Sales, and Rankin refused to allow the corn to be delivered unless the money in the hands of Power should be applied on his mortgage indebtedness. After discussing the matter for some time, Power finally agreed if Rankin would permit the corn to be delivered to Ulrich, he would apply the money in his hands in payment of the note and mortgage held by Rankin. This arrangement was made, according to the testimony of Sales, about the first of August, 1882. A parol promise to pay the debt of another is rendered void by the Statute of Frauds, and an action can not be enforced upon such a promise. There is no room for doubt as to the general rule on this subject. In Scott v. Thomas, 1 Scam. 58, it was held that where the moving consideration for the promise is the liability of a third person, there the promise must be in writing; but if there is a new consideration moving from the promisee to the promisor, there the superadded consideration makes it a new agreement, which is not within the statute. In Borchsenius v. Canutson, 100 Ill. 82, where the plaintiff had relinquished a lien or given up a security for a debt in consideration of a promise by a third party to pay the debt, the promise was held to be an original undertaking, and not affected by the Statute of Frauds. Here Rankin had a lien on the corn for the payment of his debt, which he relinquished, and allowed the corn to be sold, upon the promise of Power that the money ($1000) which he held. in his hands should be paid to him. A promise of this char Opinion of the Court. acter, under the rule established by the authorities, is an original undertaking, and in no manner affected by the Statute of Frauds. Such being the case, the evidence was properly admitted, and the court did right in overruling the motion to exclude the evidence from the jury. But it is said in the argument that Rankin had no mortgage at the time Power promised to pay the money to him, and hence no lien was waived, or security given up, on the faith of the promise. This is a clear misapprehension of the evidence bearing upon this branch of the case. It is true that Rankin fixed the date of the promise made by Power to him, in September or October, 1881; but this was a mistake as to the date. The corn sold was the crop of 1881, but it was not delivered until August, 1882, and Sales, who was present and heard the arrangement made between Rankin and Power, testified that it occurred "about the beginning of the delivery of the corn, from the 1st to the 11th of August, 1882." If there had been no evidence as to the date of the agreement except Rankin's testimony, there might be much force in appellant's position on this question; but the evidence of Sales places the date of the agreement beyond question, and at a time when the mortgage lien was in full force and effect. Objection is made to an instruction given by the court in behalf of the plaintiff. We have examined the instruction, and while there may be objections of a technical character urged against it, yet so far as the law involved in the case is concerned, the instruction lays down a correct proposition of law. It is also contended that the court erred in refusing one of defendant's instructions. The instruction refused may announce a correct proposition of law, and might, under a different state of facts, be proper; but as we understand the record, there was no evidence upon which it could properly be based, and under such circumstances it was the duty of the court to refuse it. Syllabus. It is also objected that a recovery could not be had under the common counts. Where the promise sued upon is a collateral undertaking, then the declaration is required to be special; but where the promise, as here, is regarded as an original undertaking, a recovery may be had under the common counts. Runde v. Runde, 59 Ill. 98, is an authority in point on this question. The judgment of the Appellate Court will be affirmed. 114 57 152 593 45a 641 114 57 114 57 46a 223 1. NEGLIGENCE-MASTER AND SERVANT-duty of the former to use proper precautions for the safety of the latter-as, in the unloading of cars, to avoid collisions, etc. In an action to recover for personal injuries 114 57 152 467 resulting from alleged negligence, it appeared the defendant company put the plaintiff and others of its servants to work unloading a railroad freight car standing on a spur of a side-track having connection with other tracks only at one end, and being a track not used for passing trains, and there being nothing to lead the laborers to believe the car they were unloading would be disturbed, and while so engaged the loaded car was violently struck by other cars which became detached from an engine used in switching cars in the yard, whereby the plaintiff was injured. It was held, that it was the duty of the defendant not to have brought on this peril without timely notice to the laborers so engaged; that either the cars ought not to have been brought into the position they were, without notice, or it should have been first ascertained that no danger to the laborers could result therefrom, and that the failure to do so was gross negligence. 2. The attempt to bring a train of cars on the switch to a point where the defendant's servants were engaged in unloading a car, where the grade was a descending one, without notice to them, or any signal by the bell or whistle of the engine of the approach on such track, and without having the moving cars under control by proper and sufficient couplings and brakes attached, the yard-master knowing that men were engaged all around the car they were unloading, was gross negligence on the part of the defendant. 114 57 114 57 65a 352 114 57 67a 30 67a 620 68a 247 114 57 69a 59 70a 334 114 57 75a 163 76a 600 76a 625 114 57 80a 397 |