Thе complaint alleges that the defendants are indebted to the plaintiff for lumber sold in the sum of $401.54, which is denied in the answer. On the trial it was in evidencе for plaintiff that other persons, not parties
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to this action, were indebted to the plaintiff for $401.54 for advances furnished in the lumber business, and that thеy sold the lumber to the defendants, the plaintiff not being the owner and having no lien thereon. .There was evidence, admitted over defendant’s objection, that after such purchase, the defendants promised to payout of the purchase money this debt of the vendor to the рlaintiff, but the judge having charged the jury that this, being a promise to pay a debt of another and not being in writing, it would be within the Statute of Frauds and not binding on the defendants, we need not consider it. If there was error it was harmless to thе defendants. It was, however, further in evidence over defendant’s objеctions that at the time of the contract of sale of the lumber tо the defendants, which was in writing, they farther agreed verbally
(Nissen
v.
Mining
Company,
The interesting question whether a strangеr to a contract for his benefit can maintain an action on it hаs been diversely decided in other jurisdictions, (3 Am. & Eng. Enc., 863 and notes,) but as stated in
Haun v.
Burrell, at this Term, it has not been — directly, at least — passed upon in this State. The exception, howеver, that the evidence and charge did not apply to the issues raised by the pleadings is well taken. The plaintiff sued upon a sale of lumber by him to the defendants. If the complaint is so
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worded that under the liberal procedure of
The Code
it could have been construed to be either an action on an express or implied contract, (Stokes v.
Taylor,
Error.