William E. Young, Respondent, v. Grenville M. Ingalsbe, as Executor, etc., of Lyman H. Northup, Deceased, Appellant

William E. Young, Respondent, v. Grenville M. Ingalsbe, as Executor, etc., of Lyman H. Northup, Deceased, Appellant. Third Department, May 4, 1910. Limitation, of action — part payment — void contract of sale — running account. Where one indebted for money loaned orally consented to let his creditor have certain law books of the value of §77 on account, but there was no change of possession and nothing done to extinguish any part of the debt, no title to the books passed by virtue of the Statute of Frauds, and the contract was insufficient as a part payment to save the debt from the Statute of Limitations. . An oral transaction whereby the debtor purchased a typewriter of plaintiS within six years of the bringing of the action- does not aid in reviving the outlawed claim. Appeal-by- the defendant, Grenville , M. Ingalsbe, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in- the office of the clerk of the county of Washington on the 31st day of December, 1909, upon the report of a referee in an action under section 2718'of the Code of Civil Procedure. Arnold & Sherman \_A. D. Arnold of counsel], for the appellant. William E. Young and Erskine G. Rogers, for the respondent [MAJORITY — Per Curiam :] Per Curiam : Recovery was had in this action, brought'March 25,1909, for various sums of money loaned by the plaintiff to the defendant’s testator at various times. December 20, 1892, $250 ; December 23, 1892, $250; January 27,1893, $60 ; February 9, 1893, $10 ; October 31, 1894, $100;, April 27, 1898, $20 ; May 18, 1898, $25, and-for moneys collected by the intestate in November, 1893, one-quarter of which.belonged to the plaintiff. One of the defenses relied upon is the Statute of Limitations. Two acts were found by the referee to be sufficient to take this case outside of the Statute of Limitations. The intestate, one Kellogg and the plaintiff were copartners in a law firm, and as such were interested in, certain law books.. The intestate retired from the firm about December 31, 1891. ‘ The plaintiff continued to occupy the same office until September 1904, and the intestate was at the-office more or less, but was getting to be an old man and was not there much of the time.' In the summer of 1906 the intestate, spoke to the plaintiff about the law books and said he ought to get something-out of them, as he w-as in bad financial condition, and wanted the plaintiff to let him have some money' for them. The plaintiff replied that the-intestate.had collected the moneys referred to, in which he had an interest, and that the intestate also owed him for borrowed money. After thinking a while the intestate replied that he was very old and feeble, his recollection about many things was not good, but he did have a recollection about it; that he.could not pay the plaintiff what-he owed him, and would consent to let him take these books on account of what lie owed him. The value of the intestate’s interest in the boobs was seventy-seven dollars. This transaction rested entirely in words; there was no change of possession of the books aiid nothing was done to extinguish seventy-seven dollars of the debt. No title to the books passed under the Statute of Frauds,, and the contract resting in mere words was not sufficient to make the value of the books a part payment upon the outlawed debt. The plaintiff owned a typewriter, which apparently was loaned to the intestate in 1903. At the same conversation above referred to the witness swears: “ I think the typewriter was mentioned in that conversation; I think Mr. Young mentioned it. He just referred to the typewriter as among the things he claimed against the judge; that is about all I can remember of that conversation. I remember some conversation along the line of the judge claiming an interest in the typewriter and Mr. Young explaining to him that was the old Hughes & Northup typewriter that he had an interest in, which was disposed of years ago, and this was a machine which Mr. Young had bought himself and paid for.” The referee finds as a conclusion of fact that the plaintiff let the intestate have the typewriter, and he took it to his house and purchased the same of the plaintiff.- This transaction rested entirely in words, and does not aid in reviving the outlawed claims. The Statute of Limitations was,' therefore, a defense. The judgment should be reversed upon the law and the facts, the referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event.