16 Barb. 645 | N.Y. Sup. Ct. | 1853
It is insisted on the part of the plaintiff, that the verbal agreement between Jabez Parsons and the parties to this action, which the defendant’s counsel proposed to prove, was invalid for want of consideration, and by the statute of frauds; and that if valid, it did not change the relation of the parties to the action, in respect to the debt, to each other, and make them, as between themselves, jointly liable for its payment.
The position taken in respect to the question of consideration is, that Jabez Parsons did not agree to do, or do any thing more
The statute of frauds was not applicable to the undertaking of the parties to this action. Their undertaking was with the debtor to pay his debt, and was founded upon a new and original consideration. The promise was not a collateral, but an original promise. In consideration of the assignment, and the preference given therein to the $1000 note, they assumed the payment of the note, trusting to the assignment for reimbursement of their advances. As between them and the debtor., the liability of the latter thereafter to the creditor, beyond the fund created, until the debt was paid, was as their surety. (Conkey v. Hopkins, 17 John. 113. Olmstead v. Greenly, 18 Id. 13. Myers v. Morse, 15 Id. 425. Farley v. Cleveland, 4 Cowen, 432, and cases there cited. Ellwood v. Monk, 5 Wend. 235. Barker v. Bucklin, 2 Denio, 45.)
But assuming the agreement in question was void by the statute of frauds, it was not illegal, and the assignment was made, and the $1000 note paid, in pursuance of it. The plaintiff has voluntarily performed the agreement on his part", and it cannot avail him now to allege that it was not binding upon him, and repudiate it. (Abbott v. Draper, 4 Denio, 51. Emmett, receiver, v. Reed, Selden’s notes of cases in court of appeals, No. 3, p. 47.)
Welles, Johnson and T. R. Strong, Justices.]
If the views expressed are correct, the evidence offered, of the agreement referred to, and of payments by the defendant, should have been received.
The judgment must be reversed and a new trial granted, with costs to abide the event.