Parkes v. Stafford — 40 N.Y. St. Rep. 826

Majority

p. 826

John F. Parkes et al., Resp’ts, v. Miles A. Stafford et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

1. Sale—Statute of frauds.

Plaintiffs refused to sell lumber to S., who was to construct a hotel for defendants, and was introduced to defendant Stafford, and informed him that if defendants would become responsible the lumber would be shipped in their name, to which Stafford assented. Held, that this was not an agreement to answer for the debt of another.

p. 827

2. Same—Charge.

The court refused a request to charge that if the jury found that Stafford's promise was a mere guarantee of payment of the S. bill plaintiffs could not recover, but subsequently charged that plaintiffs must establish that the lumber was shipped and sold to defendants and that they promised to pay for it. Held, that defendants were not prejudiced by the refusal

Appeal from a judgment of the supreme court, entered in the Erie county clerk’s office, October 25, 1890, in favor of the plaintiffs against the defendants, for the sum of $597.86, and from an order denying a motion for a new trial on case and exceptions.

A. C. Calkins, for resp’ts; Le Roy Parker, for app’lts.

This action was brought to recover a balance alleged to be due for a bill of lumber sold by plaintiffs to defendants.

' A Mr. Sinclair had contracted with the defendants to build for them a hotel. He negotiated with the plaintiffs, who were operating a planing mill, to furnish materials for the hotel.

The plaintiffs ascertaining that Sinclair was pecuniarily irresponsible, refused to furnish him the materials.

Sinclair, therefore, introduced the plaintiffs to the defendant Stafford, as one of the firm for whom he had agreed to construct the hotel. The plaintiffs informed Stafford that they were not willing to sell to Sinclair, but if the defendants would become responsible for the pay for the materials, they would ship the stuff in the name of the defendants. Stafford consented, and plaintiffs shipped the materials to them.

The goods were not sold to Sinclair, but to the defendants, and charged to the defendants. Sinclair owed nothing to the plaintiffs. Hence it was not an agreement to answer for the debt or default of Sinclair.

Had the goods been shipped to Sinclair, a very different question would have been presented.

While the language used by Stafford was that he would be responsible for the pay, his agreement was to pay his own debt

The defendants were witnesses for the defense. Their testimony tended to show that Sinclair was the debtor to plaintiffs, and not the defendants. The jury adopted the plaintiffs’ theory of the case.

At the close of the charge to the jury, the defendants’ counsel asked the court to charge that “if the jury find from the evidence that Stafford’s promise was a mere guarantee of the payment of the Sinclair bill, that in that case the plaintiffs are not entitled to recover.”

The court replied : “I decline to change my charge upon that subject, and give you an exception.”

It may be, in view of the defendants’ evidence, that this request should have been granted, but the defendants were not prejudiced, for thereafter the defendants’ counsel repeated the request in different phraseology, and the court replied: “ I charge that I have so told the jury that the plaintiffs must establish, to the satisfaction of the jury from the evidence, that that lumber was shipped and sold to the defendants, and that they promised to pay for it”

p. 828

This presented the matter before the jury correctly, and we are not able to see how the jury could have been misled by the former refusal.

We find no errors in the case requiring a reversal.

The judgment and order appealed from should be affirmed, with costs of the appeal against the appellants.

Dwight, P. J., and Macomber, J., concur.