91 N.Y.S. 927 | N.Y. App. Div. | 1905
The pleadings were oral. The plaintiffs sued for the purchase price of lumber sold .and delivered. The answer was a general denial, and a claim that the oral agreement on which the plaintiffs, sought to hold the defendant liable was void under the Statute of Frauds. At the time of the making of the agreement the plaintiffs had been asked by Richard Mullowney to furnish him some lumber for the building of a house, which they refused to do because of doubts as to his financial responsibility. Thereafter an interview was had' between, the defendant and one of the plaintiffs, in the course of which it is claimed that the defendant became personally liable for the' lumber on an original undertaking to pay for it himself. The lumber was afterwards furnished by the plaintiffs, and charged to Frederick 0. Mullowney, the owner of the real estate, at the defendant’s request or suggestion-; and on failure of payment by said Frederick 0. Mullowney, the plaintiffs have recovered judgment against the defendant for the purchase price.
The case was submitted to the jury upon the theory that the defendant could only be held in the event that the jury should find that he had agreed to pay for the lumber. The verdict must be assumed,to be based upon the finding of such an agreement, but I think that the evidence fails to establish such an agreement by a fair preponderance of proof. I do not agree, however, with the contention of the appellant that had the defendant made an absolute agreement to pay it would have been void for want of consideration. The defendant’s connection with the property as broker coupled with the agreement to furnish the materials on the plaintiffs’ part would have constituted ample consideration to support the defendant’s, engagement to pay, had such engagement been- established. (See Mannetti v. Doege, 48 App. Div. 567, and cases cited.)
But the whole proof indicates an oral agreement on the part of the defendant only to pay in Mullowney’s default, and that such was the plaintiffs’ understanding of the transaction.. This is clearly
I do not.mean to assert that the mere'use of the word “see” in making the promise is controlling; that is, that a promise to see a person paid may not be equivalent to a promise to pay him, but only that in this instance the whole tenor of the transaction and the language employed indicate a collateral proiriisé to pay the debt of .another "as much as if not rather than a direct promise to .pay one’s ■own debt.' The leading case of Raabe v. Squier (148 N. Y. 81.) differs from this one in that the promise there was on the part of the owner to withhold money due to the builder in case .he failed to pay the materialman, and’ to use such money in the payment for the materials,' .
The judgment must,.accordingly,.be reversed.
Bartlett, Woodward and Hooker, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered,costs to abide the event., -