Majority
Headnote
Promise—Agreement by tendee to pay debts of vendor.On June 12, 1891, the defendant purchased from Messrs. Idler & Sutton a restaurant in Stone street, this city. In addition to the purchase price, $4,000, mentioned in the bill of sale, it appears that defendant, as a further consideration, agreed to assume and pay the debts of Idler & Sutton contracted as proprietors of said restaurant. One of the debtors was the plaintiff, to whom was owing $363.85.
If there is sufficient evidence in the case establishing affirmatively the consideration or purchase price for said restaurant, as contended for by plaintiff, then there is no doubt that defendant by making such agreement with Idler & Sutton became not a surety or guarantor for the payment of their debts above mentioned, but a principal, and liable to such creditors primarily and as original debtors, and his liability to pay such debts established.
The question, “whether or not such was the consideration price for said restaurant and the agreement made between defendant and Idler & Sutton,” was submitted to the jury, and they found in the affirmative. A careful perusal of the whole evidence in the case convinces us that their finding was authorized and justified.
Finding no error the judgment is affirmed, with costs.
McGown, J., concurs.