French v. Schoonmaker

• Decision Date: 24 February 1903
• Citation: 69 N.J.L. 6,54 A. 225
• Parties: FRENCH et al. v. SCHOONMAKER.
• Court: New Jersey Supreme Court

54 A. 225

69 N.J.L. 6

FRENCH et al.

v. SCHOONMAKER.

Supreme Court of New Jersey.

Feb. 24, 1903.

Action by Sarah J. French, executrix, and Theodore F. French and another, executors, against William H. Schoonmaker. On demurrer to declaration. Judgment for demurrant.

This action is brought to recover damages for the breach of a contract, which is thus set out in the plaintiffs' declaration: "The defendant bargained for and agreed to purchase from Phineas M. French [plaintiffs' testator], in his lifetime, a certain claim of the said Phineas M. French against the Plainfield Poultry Farm Company, amounting to the sum of $845.11, with interest thereon from the 23d day of September 1899, and to pay to the said Phineas M. French the amount of the said claim, on the consideration that he, the said Phineas M. French, would put the claim in judgment, and make an assignment of the said judgment, when obtained, to him, the said defendant; and the said Phineas M. French, at the special instance and request of the said defendant, then and there agreed to sell to the said defendant the said claim for the amount of the said claim, and to put the said claim in judgment, and to make an assignment of the said judgment, when obtained, to him, the said defendant." It is expressly alleged in the declaration that the entire agreement sued upon was by parol, and not in writing.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

W. S. Angleman, for plaintiffs.

Craig A. Marsh, for defendant.

GUMMERE, C. J. The contract sued upon is for the purchase and sale of a chose in action, a debt due from the Plainfield Poultry Farm Company to the plaintiffs' testator; and the ground upon which the demurrer is rested is that such an agreement is invalid under the sixth section of the statute of frauds (2 Gen. St. p. 1603), which declares that a contract for the sale of goods, wares, and merchandise for the price of $30 and upwards shall be void unless in writing. The question whether an agreement to assign a debt due to the assignor, whether it be a simple contract debt or a debt of record, is a contract for the sale of goods, wares, and merchandise, within the meaning of the statute, was set at rest in this state by the decision of the Court of Errors and Appeals in the case of Greenwood v. Law, 55 N.J.Law, 168, 26 Atl. 134, 19 L. R. A. 688. In that case an agreement to sell and assign a bond and mortgage was held to be such a contract, and...