107 N.Y. 659 | NY | 1887
The following is the mem. of opinion in this action:
“ This action was brought by the plaintiffs, who held claims against the firm of Zeiss & Company, which firm was composed of Zeiss and Maria A. Brown, the wife of the defendant, to recover upon such claims against the defendant on the ground that he had assumed the payment of them. It was alleged in the complaint that on or about the 8th day of January, 1881, Zeiss sold all his interest in the firm property to the defendant and that as part of the consideration of the sale, the defendant, agreed to pay all the firm debts, including the claims of the plaintiffs. The defendant put .in issue all the material allegations of the complaint.
“ Upon the trial it appeared that Zeiss and Mrs. Brown entered into co-partnership for the purpose of manufacturing and selling varnish at Windsor, in Canada, for the term of three years commencing July 1,1818, and ending July 1,1881;
“ But suppose the plaintiffs are right in their contention that the defendant used the language imputed to him by Zeiss and above quoted, meaning thereby to bind himself personally, then we think it cannot be said that his agreement was made for the benefit of the plaintiffs. It was an agreement for the benefit of Zeiss to relieve him from and indemnify him against the debts of the firm, with no intention to secure any benefit to the firm creditors; and as the sale was not made to the defendant and no consideration whatever passed to him, these plaintiffs, strangers to the agreement, cannot enforce it against him. (Merrill v. Green, 55 N. Y. 270; Simson v. Brown, 68 id. 355.)
“ But the plaintiffs have to encounter a still further difficulty. The agreement imputed to the defendant is invalid under the statute of frauds, because not in writing. As before stated the sale was not to the defendant. He took no
“ The plaintiffs should therefore have been nonsuited, and hence the judgment should be reversed and a new trial granted, costs to abide event.”
reads for reversal and new trial.
All concur.
Judgment reversed.