Majority
p. 231Margaret Ruppel, Resp’t, v. Michael Donohue, App’lt. (City Court of New York, General Term Filed May 23, 1890.)
Headnote
Statute of Frauds — Sale of goods to apply on another’s debt.In an action for fats sold and delivered to defendant, the answer alleged that plaintiff’s husband being indebted to defendant, plaintiff agreed that if defendant would forbear bringing action against him she would pay the debt by delivering fats and that those sued for were delivered under the agreement. The reply denied the agreement and set up the Statute of Frauds.' Meld, that a delivery under such agreement was a mode of paying his debt which, if assented to, was open to no objection, and that the' court erred in excluding evidence to prove such agreement and in refusing to submit the question to the jury.
Appeal from judgment directed in favor of plaintiff. -¡
Between the 8th day of September, 1888, and April 22d, 1889,-the plaintiff, who was the owner of a butcher shop at Mo. 590. Tenth avenue, Mew York, sold and delivered to the defendant-certain fats.
Prior to the 8th day of September, 1888, the butcher shop óf j
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the plaintiff was owned and conducted by her husband, George Ruppel, from whom plaintiff purchased it.
Immediately after purchasing the place the plaintiff told the -collector of the defendant that she had bought the place and a book was made out in her name.
Previous to that time, all fats delivered by George Ruppel to ■defendant had been entered in a book made out in his name.
On the 15th day of July, 1889, plaintiff called at defendant’s place of business to have her book balanced and to receive payment for fats delivered by her, but instead of paying her, defendant handed back to her her book marked: “ Paid per beef bill,” together with a bill against George Ruppel, on which was a credit of $93.32.'
Defendant alleges in his answer that George Ruppel, the husband, was indebted to him in the sum of $166.10; that the plaintiff promised and agreed to and with defendant, that if he would forbear bringing any action against said Ruppel, upon his indebtedness, she would pay it by delivering to defendant fats from time to time, and that in pursuance of that agreement she delivered the fats in question.
Plaintiff served a reply, denying the making of any such agreement, and pleading the statute of frauds upon the theory that the agreement asserted by the defendant was in the nature of a promise to answer for the debt of another.
The trial judge refused to send the caseto the jury to determine whether the fats were delivered under an agreement of sale, or under an agreement by which the fats were delivered in part satisfaction of the husband’s debt, and directed a verdict for the plaintiff, from which the defendant appeals.
Guggenhdmer & Untermeyer, for app’lt; L>. Frank Lloyd, for resp’t.
We think the question should have gone to the jury to determine whether the fat delivered to the defendant was sold to him in the ordinary way, or whether it was delivered in performance of an agreement that it was to go in payment of the debt owing by the husband to the defendant It was a mode of paying his debt which, if assented to (and the proof shows it was), is open to no legal objection.
For this reason and for error in excluding evidence tending to prove this agreement, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
McAdam, Oh. J., and Fitzsimons, J., concur.