Jessup v. McGarry — 7 N.Y.S. 751

Majority

p. 751

Jessup v. McGarry.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Promise to Pay Debt of Another.

In an action to recover for milk sold, plaintiff testified that defendant told him, if he would send his milk to W., defendant would send his check for the price. Plaintiff was Corroborated by one witness. Defendant and W. denied the conversation, and there was some evidence that plaintiff had. made an effort to have defendant sign an agreement as surety for the debt. Held that, since, if plaintiff’s testimony was believed, defendant was the original debtor, a verdict for plaintiff would not be set aside.

Appeal from circuit court, Orange county.

Action by Charles L. Jessup against John McGarry to recover the sum of $134, with interest and costs,—the price of certain milk delivered to defendant or his agent, for which defendant promised to pay. Plaintiff, in his testimony, (referred to in opinion as at folios 20 and 28,) testified that he and one Woodruff went to defendant’s saloon, and while there a Mr. Yon Winkle stated to defendant that plaintiff and Woodruff had dairies of milk, which he wanted to buy; that he was a stranger to them, and wanted to make it satisfactory ; that defendant said he would do what he could, and plaintiff asked him if he would give his checks, and he said he would; that the milk was shipped to Yon Winkle; that he had received payment for part of the milk delivered in checks of the defendant,—two of which were payable to plaintiff’s order, the others to Mr. Yon Winkle, and indorsed to nlaintiff. On cross-examination, it appeared that a letter had been sent to Von WinKie by plaintiff and Woodruff, asking him to get defendant’s signature to an agreement to become surety for Yon Winkle; also, letters from plaintiff to Yon Winkle, stating that he had not received his checks, were introduced in evidence.

p. 752

The bills were all made out against Von Winkle. From a judgment entered for plaintiff for the amount claimed, and an order overruling a motion for new trial on the minutes, defendant appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

H. T. Marston, for appellant. Alton J. Vail, for respondent.

This ease involves only questions of fact, as the case was clearly and fairly submitted to the jury by the judge’s charge, and no exception taken thereto. At folios 20 and 28 of the case, it appears that plaintiff testified to a conversation with defendant wherein defendant agreed, if plaintiff would serve his milk to Von Winkle, he (McGarry) would send plaintiff a check for the amount. If this was the agreement,—and the jury must have so found,— then McGarry was the original debtor, and liable in this action. This view is corroborated by Mr. Woodruff at folio 50 of the ease. The conversation, as detailed by these persons, is denied by defendant and Mr. Von Winkle, and their testimony is somewhat corroborated by the fact that bills were made out to Mr. Von Winkle, and an effort was made by plaintiff to have defendant sign an agreement as surety or guarantor for the payment of the debt; but, after all, it was a question of fact, to be determined by the jury, and the verdict is not so manifestly against the weight of evidence as to require it should be set aside. Judgment affirmed, with costs.