Northrup v. Jackson
13 Wend. 85
N.Y. Sup. Ct.
1834
Check Treatment

By the court,

Savage, Ch. J.

There was no appearance by the defendant, and the plaintiffs were bound to make out a legal liability against him by legal testimony. It is object*86ed that the declaration was general, when it should have stated tire sp ecial contract; and also that parol evidence was given of the letter of the defendant, upon which his liability rested. Had the defendant appeared upon the trial, and omitted to raise these objections, it would have been too late afterwards ; his omission would have been deemed an assent: but as the defendant waived nothing on the trial, he has a right now to raise the objections. If the promise in question is considered a collateral undertaking, then the declaration should be special, 1 Chitty's Pl. 339 ; 1 Saund. 211, a. b.; but if it is an original undertaking, then the declaration is sufficient. I consider it an original undertaking. It is not that he will pay for a debt of Craig previously existing, but if you will deliver Craig certain lumber, I will pay you. This is a contract between these parties, upon sufficient consideration moving between them. The delivery of the lumber was a damage to the plaintiffs, and that is sufficient to sustain the action. The pleading is therefore sufficient. The next question is upon the evidence. The admission of parol proof of the contents of the letter was clearly wrong; but as no writing was necessary to sustain the promise, was there enough shown without evidence of the letter ? In the subsequent conversation between the defendant and the witness, the defendant admitted that the lumber had been delivered, and that he was accountable to pay the balance then due. This admission might have been made without any previous contract; but without proof of such previous contract, this evidence is insufficient to sustain a recovery. It is a mere parol admission, that the defendant was liable to pay the debt of another. Had there been an express promise then made, after .the delivery of the lumber to Craig, to pay the plaintiffs for it, such promise would have been void by the statute. Without the contents of the letter, therefore, the action cannot be sustained ; and as the contents were improperly proved, the common pleas were right in reversing the judgment of the justice.

Judgment affirmed.