# Beal v. Brown

> Massachusetts Supreme Judicial Court · October 15, 1866 · 95 Mass. 114

URL: https://www.frixlaw.com/law-library/cases/6414752

## Case

- **Full name:** Nathaniel Beal v. William Brown
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** October 15, 1866
- **Citations:** 95 Mass. 114
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bigelow
- **Judges:** Bigelow
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6414752

## Opinion text

Bigelow, C. J.
There was direct and positive evidence that the defendant, at the plaintiff’s request, entered into a verbal guaranty of a debt due from the plaintiff, in pursuance of which *115 the former subsequently paid the debt. This evidence, if believed, would have required the jury to find that the money charged in the account in set-off was paid at the special instance and request of the plaintiff, and that the item of money so paid was a valid set-off to the plaintiff’s claim. Of the credibility of this evidence, it was the exclusive province of the jury to judge; and it was erroneous to withdraw it from their consideration.
The statute of frauds cannot avail the plaintiff, as an answer to the set-off. Although the verbal guaranty was within it, and might have been avoided if the defendant had seen fit to rely upon the statute when called on by the plaintiff’s creditor for the payment of the debt, the defendant was not bound to set it up. He had a right to perform his paroi undertaking. It was a contract made on a good consideration, which the statute does not declare void or illegal, but only provides that no action shall be maintained upon it against the guarantor. But this enactment is exclusively for the benefit of the guarantor, and is designed to protect him from the danger of being made liable for the debts of another by false testimony. He may elect to fulfil his verbal promise, and, if he does so and pays money in pursuance thereof, the principal debtor is liable for the amount as for money paid at his instance and request. The statute of frauds can have no operation as between the original debtor and his guarantor. Cahill v. Bigelow, 18 Pick. 369 , 372. Nor can the plaintiff resist the defendant’s claim in set-off on the ground that he forbade the payment of the debt by the defendant. Even if such prohibition could be allowed to have any effect, if seasonably made, the evidence shows that it was not made until the defendant had become absolutely bound by his written promise for the payment of the debt Exceptions sustained.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6414752. Public record. Not legal advice.