Pfeiffer and another v. Adler

Pfeiffer and another v. Adler. Statute of frauds. A parol promise to sell goods to a responsible person, fof full value, on the usual terms, forms no consideration for a collateral agreement to pay the existing debt of a third party. Appeal from the general term of the Supreme Court, in the first district, where a judgment entered in favor of the defendants, upon the report of a referee, had been affirmed. Tbis was an action by Philip Pfeiffer and Samuel Franbenheimer against Yettey Adler, upon a verbal promise by the defendant to pay a debt due from her deceased husband to the plaintiffs. Upon the trial before the referee, it appeared, that the plaintiffs sold goods to the defendant’s husband, in the years 1850 and 1851. He died in December 1854, having reduced the debt, by payments, from time to time, amounting, in the aggregate, to $1600, but leaving a balance still due to the plaintiffs. . After his death, the widow promised, verbally, to pay them tbis ballance; and they, at the same time, promised to sell goods on credit to her, to enable her to carry on business, and to assist her in settling with other creditors of her husband, and these promises they fulfilled. There was no written engagement between the parties, and she paid only about $50 on account of her husband’s debt. Upon this state of facts, the learned referee (Judge Peabody) directed a dismissal of the complaint; to which the plaintiffs excepted; and the judgment having been affirmed at general term, they appealed to this court. Runkle, for the appellants. Reynolds, for the respondent. Also reported in 4 Trans. App. 95. [MAJORITY — Porter, J.] Porter, J. It does not appear, that the husband left any property, or that the widow had any interest to subserve, by assuming the payment of his debts. She was under no obligation to the plaintiffs, unless one was created by her unwritten promise to pay what she did not owe. The original demand was not extinguished by the arrangement, and *there was no such new consideration as would suffice to take the case out of the statute of frauds. The settlements which the plaintiffs were to aid her in negotiating, were of the debts of another, for which she was not liable, and in which she had no personal concern. She was evidently in good credit; for the appellants were willing to trust her for the amount of her husband’s debt, and for all she was willing to purchase. A verbal promise to sell goods to a responsible party, for their full value, and on the usual terms, forms no consideration for an independent engagement to pay the antecedent debt of a third person. There is nothing in the facts found by the referee, to withdraw the agreement from the operation of the statute of frauds. (Mallory v. Gillett, 21 N. Y. 412). The judg ment should be affirmed. Judgment affirmed. Bocees and Grover, JJ., dissented.