Dock v. Boyd & Co.

• Decision Date: 26 January 1880
• Citation: 93 Pa. 92
• Parties: Dock <I>versus</I> Boyd & Co.
• Court: Pennsylvania Supreme Court

93 Pa. 92

Dock versus Boyd & Co.

Supreme Court of Pennsylvania.

January 12, 1880.

January 26, 1880.

January 12th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 118 H. A. L. Pyle and Chapman Biddle, for plaintiff in error.— Such a contract as the one here alleged is void, unless the original claim is given up and the new contract accepted in its stead: Shoemaker v. King, 4 Wright 110; Maule v. Bucknell, 14 Id. 52.

[SHARSWOOD, C. J. — If Dock had property of Miller's in his control it was not necessary that the promise should be in writing. If he had not, is he not now estopped from the denial of that fact by having induced them to put faith in his statement?]

To make Dock liable on such a promise it was necessary to show first that there was sufficient property of the debtor in his hands; second, that as between him and the debtor, he assumed to pay the debt out of the property; and third, that he had promised the creditor to appropriate the money to his use. Neither of the first two of these essentials was shown. There was not a particle of testimony that this lumber or any property or money of Miller had ever been put in Dock's hands as trustee to pay Boyd & Co., or with a view to its application to their debt. At the date of his alleged promise, Dock, as one of the partners of the Lick Run lumber firm, happened to have in his hands some of its lumber, with the right as between him and his partners to sell it and keep the money for his own use — that is, to reimburse himself for advances made for his partners. The promise of Dock was without any consideration whatever.

George Junkin, for defendants in error.—Forbearance, either limited or general, is a good consideration for a promise to pay the debt of a third person: Silvis v. Ely, 3 W. & S. 420.

No proof need have been made that Dock actually had money and property of Miller's in his hands, or that he and Miller had so arranged the matter. Dock's representation and promise estopped him from denying that such was the case. But the proof in the case went much further. It appeared, and there was no attempt to deny it, that Dock had in his hands a large quantity of property belonging to Miller. It consisted of lumber, the proceeds of lumber and a promissory note.

Wherever money, or funds, or securities, or other property of a debtor are in...