
    Patrick Fitzgerald, Resp’t, v. Wesley C. Tiffany, App’lt.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed July, 1894.)
    
    Contract—Statute of frauds.
    Verbal promise to pay for goods as condition of their delivery to another and vendor’s charge of them to the promisee, take the contract from the operation of the statute of frauds.
    Appeal from a judgment rendered by the municipal court of Buffalo.
    
      William Armstrong, for app’lt; E. N. Sackett, for resp’t.
   Hatch, J.

—Upon the trial evidence was given tending to establish that one Conover engaged plaintiff to furnish the material and make for him a suit of clothes. When the clothes were finished, Conover examined, and approved of them and asked for credit, which was refused; thereupon he proposed to obtain an order from defendant for their delivery, which was assented to by plaintiff. Conover then obtained this writing:

“ Buffalo, N. Y, Jany. 19, 1888.
“ P. M. Fitzgerald, give bearer the clothes and oblige."

Plaintiff, not being satisfied with this, went to defendant; asked him if he signed the order defendant replied that he did. Plaintiff then asked, “Will you pay for these clothes ? ” Defendant replied, “Certainly, I will pay for them.” Plaintiff thereupon delivered the clothes to Conover and charged, in his book, the purchase price to defendant. The effect of this transaction waste» make defendant the principal debtor. The writing did not have the effect of creating any obligation against defendant, but that, coupled with his verbal promise to pay for the clothes, constituted a distinct independent obligation upon his part to pay. Defendant did not undertake to pay if Conover made default; he became primarily liable, and the debt, as between plaintiff and Conover, was extinguished, and plaintiff could not have maintained an action against him therefor, as it would be a complete defense to show that credit was never given to him, but to defendant. This fact distinguishes the contract from the one in Mallory v. Gillett, 21 N. Y. 412, and makes that case an authority for the rule here laid down. Id. 432. It is also in harmony with the other cases on the subject. Brown v. Weber, 38 N. Y. 190 ; Booth v. Eighmie, 60 id. 240; Duffy v. Wunsch, 42 id. 246.

It has been held that whether the promise was original, so as-to make the promisor liable as a primary debtor, was a question of fact. Cowdin v. Gottgetreau, 55 N. Y. 650.

The court below has by its judgment found that the obligation created was a substitute for any obligation existing against Con-over, and the evidence warranted such finding. In whom vested the legal title to the clothes does not affect the question. The title may have been in Conover, as seems to be the law announced in Higgins v. Murray, 4 Hun, 565, and Donnell v. Hearn, 12 Daly, 230, or it may have been in plaintiff, as expressed in Higgins v. Murray, 73 N. Y. 252.

An obligation existed, and it was entirely competent for defendant to assume that obligation, and when he agreed to pay it it became his debt, and the statute of frauds does not defeat a recovery upon the obligation thus assumed.

Judgment appealed from should be affirmed,'with costs.

Titus, Oh. J., and White, J., concur.

Judgment affirmed, with costs.  