Combs v. Bateman , 10 Barb. 573 ( 1850 )

By the Court, Allen, J.

Upon the evidence the plaintiffs were the proper parties to bring the action. They were the parties in interest and entitled to the- recovery. Ehle was a mere guarantor. {Code, § 111.) Neither was there any error in permitting the plaintiffs to re-examine Ehle after he had been improved as a witness by the defendant. He was clearly interested in the event of the action, and unless made competent by § 398 of the code could not have been called by the plaintiffs, in whose favor he was interested. But the defendant, by calling him as a witness, waived the objection, and made him a witness generally in the cause. (Varick v. Jackson, 2 Wend. 166. Fulton Bank v. Stafford, Id. 483.) The evidence that Ehle had the day before the consummation of the contract, and during the pendency of the negotiation, told the defendant of the ailments of the horses, was properly admitted by the justice. It disproved the fraud and negatived the concealment of the defects complained of. (Murray v. Bethune, 1 Wend. 191.) The only remaining question is as to the validity of the undertaking upon which the action is brought. The only consideration for the promise is the agreement of the payee to exchange his horses for the two yoke of oxen of the defendant, and if that agreement is void by the statute of frauds the promise is without consideration and void. The property was óf a greater value than fifty dollars, and the agreement is therefore within the statute requiring a note or memorandum thereof in writing, subscribed by the parties to be charged thereby, unless the purchaser has accepted and received the property, or at the time has paid some part of the purchase money. (2 R. S.136, §3.) The contract was not reduced to writing. Neither was the property or any part of it delivered, and the only question is whether the giving the note in question was a payment of a part of the purchase money, within the statute. The delivery of a bill of exchange or promissory note on account or in payment of the price of goods sold'under a parol contract, is said, in some of the elementary works, to take a case out of the statute. (Chit. on Cont. 397. 10 Petersd. Ab. 128, note.) Chitty adds as a reason, that such instrument amounts to payment, till dishonored, and cites Chitty on Bills, 7th ed. 97 ; Id. 8th ed. 80, note v. 84. This doubtless refers to a bill of exchange or promissory note of a third person, and not of the purchaser. The delivery of the note of the purchaser can in no sense be said to be a payment. It may suspend the right of action of the seller, for the purchase money, until the maturity of the note, but the absolute liability of the purchaser remains. Not so, however, in all cases of the delivery of the obligation of a third person. That, when agreed to be taken in satisfaction, is an absolute payment, and in all cases the purchaser’s liability is contingent. (Breed v. Cook, 15 John. 241. Porter v. Talcott, 1 Cowen, 359. Whitbeck v. Van Ness, 11 John. 409. Story on Prom. Notes, § 104, and cases cited. Butler v. Haight, 8 Wend. 535.) All that was done in this case was that the parties respectively promised to perform the agreement which they made. It is true that the defendant put one part of his undertaking, viz. his promise to pay twenty dollars in oats at a future day, in writing. That promise, if made upon good consideration, was good without the writing, and without consideration the written promise can not be upheld. So it is still but the promise of the defendant. There is no payment, and the contract to deliver the property which was the subject of the exchange, and was of greater value than fifty dollars, was not reduced to wilting and signed by the parties. It was all an entire contract, and the fact that one part of it was in writing does not aid the plaintiff. That part required by statute to be in writing was not so evidenced. (Mechelen v. Wallace, 7 Ad. & E. 49. Harvey v. Graham, 5 Id. 61.) The consideration of the agreement to pay the twenty dollars in oats was the undertaking of the plaintiff te sell and deliver his horses, and that was void, not being in writing. There was therefore no consideration for the defendant’s promise, and judgment should have been given for him. ( Walker v. Nussey, 16 Mee. & Wels. 302. Archer v. Zeh, 5 Hill, 200, and opinion of Cowen, J. pp. 203, 204.) The judgment of the county court and of the justice must be reversed.