80 N.Y. 269, Milks v. Rich

• Citation: 80 N.Y. 269
• Party Name: GILBERT MILKS, Respondent, v. CHARLES J. RICH, Appellant.
• Case Date: February 24, 1880
• Court: New York Court of Appeals

Page 269

80 N.Y. 269

GILBERT MILKS, Respondent,

v.

CHARLES J. RICH, Appellant.

New York Court of Appeal

February 24, 1880

Argued Feb. 6, 1880.

Page 270

COUNSEL

C. D. Murray, for appellant. The promise claimed to have been made by defendant being contingent upon the default of a third person, was void under the statute of frauds. (2 R. S., 136, § 2; Bell v. Dagg, 60 N.Y. 528; Id., 238, 240; Brown v. Weber, 38 Id., 187.)

Wm. H. Henderson, for respondent. Defendant's agreement was not within the statute. ( Dauber v. Blackney, 38 Barb., 432; Fowler v. Clearwater, 35 Id., 143; Losee v. Williams, 6 Lans., 228; Johnson v. Gilbert, 4 Hill, 178; Leonard v. Fredenburg, 8 J. R., 29; Brown v. Curtiss, 2 N.Y. , 225; Mallory v. Gillett, 21 Id., 412, 423; Cardell v. McNiel, Id., 336; Saunders v. Gillespie, 59 Id., 250; Bruce v. Burr, 67 Id., 237.) The language used by the defendant on the sale of the note constituted an express warranty of payment. ( Bruce v. Burr, 67 N.Y. 237; Cardell v. McNiel, 21 Id., 336.)

EARL, J.

We must assume here the most favorable construction which the evidence will bear for the plaintiff, as all conflict and doubt has been settled in his favor by the jury. We may assume, then, as the effect of the evidence (although it is not very satisfactory), that the defendant, in borrowing the money of the plaintiff and disposing of the Marsh note to him, was ostensibly acting for himself, and not as agent for Marsh, and that he promised that the note was good, and would be paid at maturity. The defendant claims that

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this promise, not in writing, is void under the statute of frauds. The reasoning to take this promise out of the statute is quite subtle, and I should have much difficulty in yielding it my assent, but for the authorities which I think ought now to control. The following are some of them: ( Fowler v. Clearwater, 35 Barb., 143; Dauber v. Blackney, 38 Id., 432; Lossee v. Williams, 6 Lans., 228; Johnson v. Gilbert, 4 Hill, 178; Brown v. Curtiss, 2 N.Y. , 225; Cardell v. McNiel, 21 Id., 336; Bruce v. Burr, 67 Id., 237.)In Johnson v. Gilbert, the plaintiff, at the defendant's request, paid one James Sherwood a debt which the defendant owed Sherwood, and in consideration of that payment, the defendant transferred the note of one Eastman to the plaintiff, and...