Weber & Co. v. Bishop

12 Pa. Super. 51 | Pa. Super. Ct. | 1899

Opinion by

William W. Pobter, J.,

The plaintiff’s claim is based upon an unwritten promise by fee defendant to pay the debt due by the defendant’s brother. In order to escape the effect of the statute of frauds, the plaintiff invokes the rule of law, namely, that whenever the main purpose of the promisor is not to answer for the debt of another, but to subserve some purpose of his own, his promise is not within the statute, and this, although the performance of it may incidentally have the effect of extinguishing the liability of another: Arnold v. Stedman, 45 Pa. 186; Elkin v. Timlin, 151 Pa. 491; Nugent v. Wolfe, 111 Pa. 471; Bailey v. Marshall, 174 Pa. 602; Crawford v. Pile, 190 Pa. 263.

The sole question at issue, therefore, is whether the promise of the defendant, if made, was given to subserve some purpose of his own. The plaintiff is a dyer, and for many years dyed fee product of the factory of J ohn H. Bishop, who was a manufacturer of hosiery. John H. Bishop was taken sick. His brother, the present defendant, assumed the management of the business. While thus engaged, he requested the plaintiff to store some 1500 worth of hosiery. To this, the plaintiff agreed. In October, 1897, the sheriff sold out the business of J ohn H. Bishop. It seems to have been bought in by Hannah C. Bishop, his wife. The whole management, however, of the business continued in the control of William J. Bishop, the present defendant, who admittedly became the owner a few months later. During the months following the sheriff’s sale, until she retired from participation in the business altogether, Mrs. Bishop received only some sums of money necessary for her housekeeping expenses. She was nominally the owner. She, however, admitted that William J. Bishop was the real owner of the business after the sheriff’s sale. The plaintiff testifies that after this sale the defendant frequently requested the delivery to him of the $500 worth of hosiery on storage with the plaintiff, promising that, if the goods were delivered to him, he would become responsible for the debt due by his brother, John H. Bishop. On this promise, as the plaintiff asserts, the goods were delivered to the defendant, who subsequently made a payment of $50.00, on account of the claim, by his personal check. The making of the promise is not denied by the defendant, who was not called as a witness. The only testimony submitted by the defendant tends to throw doubt on the original deposit of the goods on storage, and on the status of the defendant at the time the promise was made. These were matters of fact, and as such were submitted to the jury in a charge, quite as favorable to the defendant as he could have expected. The jury have found for the plaintiff. In view of this finding the application of the rule of law above stated is made clear. The promise made by the defendant to pay his brother’s debt is supported by the advantage secured by the delivery of the stored hosiery to him.

This disposes of all of the assignments of error, save, perhaps the third, in which complaint is made that the trial judge, referring to the testimony of Mrs. Bishop, says, “ I believe she admitted that after the sheriff’s sale, William J. Bishop was the real owner of the business,” without referring to her testimony, in which she states that she was the owner until she turned the business over to him in April, 1898. Taking her whole testimony into consideration, we are not persuaded that the court below was guilty of error in the making of this reference to her admission. She was at best but a nominal owner, having, as she says, received no profits, but only sums of money for household expenses for a few months, during which time the defendant had the control of the business, and at the conclusion of which the business was taken over by him, without anj'- payment or allowance to her. Her admission was in effect her own interpretation of her relation to the business.

The judgment is affirmed.