Reynolds v. Lawton — 43 N.Y. St. Rep. 578

Majority

p. 578

Mortimer F. Reynolds, Resp’t, v. Arthur W. Lawton, Impl’d, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Promise—Statute oe erauds.

Defendant purchased the interest of two partners in a firm which occupied rooms in plaintiff’s building, and as part consideration for the purchase agreed to pay the rent then due from the firm. Held, that plaintiff could maintain an action upon such promise; that it was founded on a good consideration and was not within the statute of frauds, as it was a promise by defendant to pay his own debt in a particular manner.

2. Evidence—Conclusion.

A question put to a party as to whether he in any way held himself out as a partner, is objectionable as calling for a conclusion of law.

Appeal by the defendant from a judgment of the county court of Monroe county, entered on the verdict of a jury in an action first tried in the municipal court of Eochester, and appealed to the county court for a new trial.

Turk & Barnum, for app’lt; G. J. Bissell, for resp’t.

The action was to recover for rent of apartments in the Eeynolds Arcade in Eochester. They had been occupied by a firm composed of three persons, Eay, Austin & Bowdish, doing business under the name of The Arcade Photograph Company. There is evidence to support the plaintiff’s theory of the case, viz., that this copartnership was indebted to the plaintiff for five months’ rent at fifteen dollars per month when the defendant bought out the interest of the two partners, Eay and Austin, in the stock, fixtures and business of the firm, with the consent of Bowdish and with the view of continuing the business in partnership with the latter; that in making such purchase, and as part of the consideration of it, he assumed and agreed to pay the rent of the rooms then due to the plaintiff, as above mentioned.

p. 579

This evidence was not uncontradicted, but we are not at liberty to inquire, on this appeal, as to the relative weight of the evidence, for the reason that there was no motion for a new trial in the county court. Reilley v. The D. & H. Canal Co., 102 N. Y., 383 ; 2 St. Rep., 419 ; Boos v. World Mut. Life Ins. Co., 64 N. Y., 236 , 242. We must,-therefore, assume the facts stated to have been found by the jury on sufficient evidence.

Such being the facts, the case seems to be directly within the doctrine of Lawrence v. Fox 20 N. Y., 268 , and to stand upon the best reason which has been given for sustaining an action by ■a party not privy to the contract, nor its consideration, upon which the action is brought. It is the case of a promise by the defendant to pay his own debt to Ray and Austin by paying their debt to the plaintiff. There has never been any question but such a promise could be enforced by the person for whose benefit it was made. It was for a good consideration, viz., the transfer of the partnership interest of Ray and Austin; it was not within the Statute of Frauds, because it was a promise by the defendant to pay his own debt in the particular manner specified; it was solely -and directly for the benefit of the plaintiff, and it could be enforced by him under the unquestioned doctrine of Lawrence v. Fox.

The cases industriously collected by counsel for the appellant, in which it has been'held that the contract was not within the doctrine here applied, were variously distinguishable from the -case at bar, and are not within Lawrence v. Fox, by reason of such distinctions.

The instructions as to the effect of - defendant’s omission to call "the other parties to the contract with him was, we think, properly qualified.

The objection to the question put to the defendant by his own -counsel: Did you in any way hold yourself out as a partner ? ” was properly sustained on the ground, specified on this trial, that it called for a conclusion of law.

There was, we think, no error committed on the trial which vitiates the verdict

The judgment must be affirmed.

Judgment of the county court of Monroe county affirmed.

Macomber and Lewis, JJ., concur.