Eighmie v. Townsend — 39 N.Y. St. Rep. 880

Majority

p. 880

Edgar Eighmie, Resp’t, v. Jacob Townsend, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Promise—Statute of frauds—Trust.

One C., who was indebted to plaintiff, and for whom defendant was liable as endorser, gave to defendant a chattel mortgage in consideration of “ endorsements, sureties and promises,” and defendant promised to pay the debt to plaintiff. After the notes on which he was endorser were paid defendant turned over the mortgage to one S., on O.’s order. Held, that his promise was not within the statute of frauds; that he look the mortgaged property charged with a trust and could not relieve himself of such trust by turning over the property to C., or on her order.

Appeal from judgment of county court in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes.

In May, 1887, one Belle Cunningham was indebted to plaintiff to the amount of $68.09 for labor performed, and also to others. The defendant was also liable as endorser on her notes. She thereupon gave him a chattel mortgage for $600 in consideration of “ endorsements, sureties and promises,” and he promised to pay

p. 881

plaintiff’s debt, and afterwards made the same promise to plaintiff. Defendant never sold any of the mortgaged property, but after the notes on which he was endorser were paid he turned over the mortgage to one Swift on the order of Mrs. C.

Frank L. Akerley, for app’lt; G. & G. H. Williams, for resp’t.

-It is a well recognized rule that a promise to pay the pre-existing debt of a third person to the promisee is not within the statute of frauds'if the substantial effect of its fulfillment will be to discharge the debt out of a fund furnished to the promisor by the debtor, in contemplation of which the promise was made.

The plaintiff testified that defendant promised to pay him the debt declared on, and the original debtor, Cunningham, also testified that in consideration of the mortgage she gave to defendant that he made a promise to her to pay the debt, and the jury must have so found.

The promise, in any view, having been made for the benefit of the plaintiff, he could, under the authority of Lawrence v. Fox, maintain an action upon it unless it was void under the statute of frauds.

In this case it is settled by the verdict that at the time the fund or property out of which the debt of Cunningham was to be paid was turned over the defendant promised to pay the debt, and that subsequently the defendant promised to pay the said debt to the plaintiff without any new consideration proceeding from the plaintiff to the defendant

The defendant himself testified as to the conveyance of the property and that Cunningham wanted him to sell the property and pay the debts. He also testified that he promised to pay the debt out of the proceeds of the property.

The defendant, therefore, received the property charged with a trust for the benefit of plaintiff, and he could not relieve himself of that trust by turning over the property to Cunningham or upon her order or consent.

The property placed in the hands of the defendant was ample to pay all the obligations assumed by the defendant, so that there is no suggestion of failure of consideration between Cunningham and Townsend, the defendant; therefore the case of Dunning v. Leavitt, 85 N. Y., 30 , and other cases cited by appellant have no application.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.