| NY | May 20, 1879
We do not think that upon the evidence in this case, a verdict that the defendants were the purchasers of the timber in question and undertook unconditionally to pay for it, could have been sustained. The order which Decker the vendor obtained from W.B. Allen, and presented to the defendants is totally inconsistent with that theory. *303 By the terms of that order the purchase price of the timber was to be paid by the defendants, not out of their own funds, but out of any funds to become due to Allen under his contract with the defendants. This shows clearly that the debt was not that of the defendants, but that of Allen, and that the payment to be made by the defendants was conditioned upon money becoming due from them to Allen, and was to be made for his account. The testimony of Decker is to the effect that when applied to by Allen for the timber, he stated to Allen that he was not willing to sell to him, but was willing to sell to the defendants, and they then went together to the defendants where the same statement was repeated, and he says generally that Maurice Walsh one of the defendants said he would take the timber, and it was then agreed that Allen should pay $2,500, and Walsh should pay the balance. But when asked what Mr. Walsh said, the witness testified that the words were that Allen was to build the building and sign the tickets for the timber on delivery, and when the timber was all delivered he was to give Decker an order on the defendants for the balance, on what was due for the construction of the building. That Allen gave the order, and paid the $2,500, and witness afterwards took the order to the office of the defendants who admitted that they owed Allen more than the amount of the order.
This testimony is entirely consistent with the terms of the order and shows that the writing truly expressed the understanding of the parties, which was that the defendants were not absolutely bound for the price of the timber, but that it was to be paid for out of the money to become due to Allen on his contract. In other words Decker took an equitable assignment from Allen of so much of the money to become due to Allen from the defendants as should suffice to pay the balance due from Allen to Decker for the timber.
Upon this evidence an action for goods sold and delivered could not be maintained by Decker against the defendants. The action should have been upon the draft and then the issue would have been whether Allen had performed his contract *304 with the defendants and how much became due from defendants to Allen. That is a very different issue from the one presented in this action. The testimony shows that the contract of Allen was not performed and it was a disputed question whether anything became due upon it which was applicable to the payment of the draft. That question was not triable nor was it tried in this action. The plaintiff claimed upon the ground that the defendants were liable as purchasers of the timber.
We think the nonsuit was properly granted and that the judgment should be affirmed.
All concur.
Judgment affirmed.