R. & G. Barry v. Law

R. & G. Barry v. Law. A conditional promise to pay the debt of another is within the Statute of Brauds. An entry in the defendant’s books, not signed by any one, is not a sufficient note in writing to take the case out of the statute. Assumpsit. 1st count, money had and received. 2d, a special promise to pay for planks and timber sold by the plaintiffs to Bryan, in consideration that the plaintiffs would forbear to sue him. 3d, indebitatus assumpsit for planks, &c., sold to the defendant himself. The case, in evidence, was, that Bryan had contracted with Mr. Law to build stables, and furnish materials. That Bryan purchased of the plaintiffs planks, &c., to the amount of Bryan, at the foot of the plaintiffs’ account rendered, drew an order on Mr. Law, in these words : — “ Sir, please to pay to R. & G. Barry the above account, being lumber used in building your stables, and charge your humble serv’t. B. Bryan.” “ To Tho. Law.” This order was not on stamped paper. The defendant, on the 6th of December, 1800, made an entry in his books, as follows: “ Stables on Sq. 693, Dr. To am’t of Capt. Barry’s bill, $135.97,” and promised the plaintiffs that if so much was due by him to Bryan, the bill should be paid. [MAJORITY — The Court] The Court refused the order to go in evidence to the jury because it was not stamped. They also instructed the jury that the plaintiffs could not recover on the defendant’s promise, unless he had signed a note in writing promising to pay, &e. That it being a conditional promise did not take it out of the statute of frauds. And that the entry in the defendant’s books was not a sufficient note in writing to charge the defendant. They refused to instruct the jury that if at the time of the promise the defendant was indebted to Bryan in a sum equal to the plaintiffs’ claim, the evidence was applicable to the count for money had and received. Kilty, G. J., absent.