—Whether the memorandum, annexed to, and forming part of the complaint, was a sufficient memorandum, within the statute of frauds, to bind the owner of the premises to make the lease, in pursuance of the sale at auction, it being signed neither by the owner nor by a duly authorized agent, is not a question which can be raised on this demurrer; since the owner has actually executed the lease to the defendant, upon the terms upon which the premises were bid off by him.
Had the memorandum been actually signed*by the owner, or by the plaintiff, as his lawfully authorized agent, it would, though not signed by the defendant, have bound the latter, and have created, in respect to the auctioneer’s fees, a privity of contract between him and the plaintiff, which would have entitled the latter to sue for the fees, in his own name. (Bleecker v. Franklin, 2 E. D. Smith, R. 93.)
But the memorandum is actually signed by the defendant, and, by it, he expressly agrees to pay the auctioneer the fees for which he now sues. Whether this be treated as a stipulation with the owner, to pay the auctioneer, or with the auctioneer himself, in either case, the latter may sue for them in his own name.
The argument, that the owner of the premises was not bound by the memorandum, and therefore, the defendant is not bound, is answered by the fact, before adverted to, that the owner has complied with the terms of it, and executed the lease.
The defendant cannot now object to its sufficiency, both parties having acted under it, and the defendant having received the benefit of it.
Besides, the complaint alleges a distinct agreement, by the defendant, with the plaintiff, to pay the fees in question, for his services as auctioneer, and that the services were rendered.
This the demurrer admits. Sucha promise, would not be a promise to pay the debt of another, but an original undertaking of the defendant himself, and would be good, though not in writing.
In every aspect, the demurrer is not well taken.
The order must be affirmed.
Affirmed accordingly.