Mercein v. Andrus & Mack

10 Wend. 461 | N.Y. Sup. Ct. | 1833

By the Court,

Savage, Ch. J.

It is apparent, from comparing the declaration with the testimony, that the promise proved does not sustain any one count in the declaration. This objection, however, was not taken upon the trial; it could not be taken, therefore, upon the argument, as it is possible it might have been obviated at the trial.

The promise proved was to endorse a note for $150. This is the only promise which it is alleged was made or assented to by Mack. There is not a particle of testimony to shew that Mack ever assented to, or knew of the endorsement of the $600 note.

The judge correctly stated to the jury, that where the prom-i-e of one person to pay the debt of another was founded upon the consideration of surrendering up property levied on by an execution, the promise was an original undertaking, and need not be in writing to be valid ; that it was not within the statute of frauds. Whether the evidence proved such a case was submitted to the jury.

The judge also stated correctly the principle that one partner cannot bind his copartner, except in transactions relating to the business of the copartnership ; but he proceeded to say that principle was not applicable to this case; for if they believed that Mack was present and heard the arrangement made by his copartner, the law would presume he assented to it, and he would be as much bound by the bargain as if he made it himself; and whether he was present was a point for them to determine. In this, I think the judge was mistaken. Had the transaction related to a partnership concern, both would have been bound; but this did not, and no man can be bound by implication; it must be by his express agreement. What was said or agreed to by Jlndrus, was of no greater force or effect upon Mack, than if they had not been connected in business. There is no pretence that Mack was liable upon the note on which his name appeared; he never assented to that arrangement at all. If he ever assented to any arrangement, it was to endorse a note for $150; and there is no pretence that such a note was made.

New trial granted; costs to abide the event.