Phelps v. Rowe — 56 N.Y. St. Rep. 762

Majority

p. 762

Henry C. Phelps, Resp’t, v. Lucian Rowe, App’lt.

(Supreme Court, General Term, Fifth, Department,

Filed January, 1894.)

Headnote

1, Contract—Statute or Frauís.

A verbal promise by an assignee to collect the assigned claim and, out of its proceeds, to pay a creditor of the assignor, is not void under the statute of frauds.

8. Same—Promise to pat third person.

The assignee, in such case, having accepted the- claim upon that condition, became the debtor 'to the assignor’s creditor and liable to an action therefor.

Appeal from a judgment of the Monroe county court, and from an order of that court denying the defendant’s motion for a new trial made upon the minutes.

P. M. French, for app’lt; John Desmond, for resp’t.

One Jackson Utter owed the defendant about $1,500 for rent of a farm ; he at the same time was indebted to plaintiff in the sum of $240 for apple barrels which he had purchased of him and for which he had agreed to pay the plaintiff when he sold the apples. Utter sold his' apple crop, including the barrels purchased of plaintiff, to a Mr. Burlingame, for the sum of $931.25. A controversy arose between Utter and Burlingame concerning the apple bargain, and Burlingame-refused to pay for them. Utter thereupon made a verbal agreement with the defendant to the following effect: Utter was to transfer his claim against Burlingame to the defendant; defendant was to collect it, and when collected, he was to pay, out of the money received, to the plaintiff the amount of his claim against Utter. Utter made accordingly a formal written assignment of the said claim to defendant. Nothing was said in the writing as to what should be done with the money when collected.

Plaintiff was not cognizant of the agreement or assignment until after they were made. When informed of them, he called upon the defendant, and the defendant promised him that he would pay his claim against Utter when he succeeded in collecting the money of Burlingame.

Burlingame paid the money to the defendant, and though requested so to do, he refused to pay plaintiff’s claim, and this action was prosecuted in the municipal court of Rochester, where plaintiff had a verdict against the defendant for the $240. The action was retried in the Monroe county court where plaintiff obtained another verdict, and appeal was taken to this court. It is the contention of the counsel for the appellant, that the promise not

p. 763

being in writing was void under the statute of frauds. We do not think so.

Utter was under no legal obligations to transfer his claim against Burlingame to the defendant. He did so upon condition that defendant should, out of the moneys when collected pay plaintiff’s claim. The defendant having accepted the claim upon lhat condition, became the debtor to plaintiff for the amount of the Utter debt, when he obtained the money of Burlingame and was liable to the plaintiff in an an action therefor. Lawrence v. Fox, 20 N. Y., 268 .

The judgment and order appealed from should be affirmed, with costs.

Dwight, P. J... and Haight, J., concur.