
    Abraham Fowler, Plaintiff and Appellant, v. Peter Moller, Defendant and Respondent.
    1. The delivery of chattels to a creditor of a third person, and his acceptance of them in satisfaction of the indebtedness to him of such third person, without the latter being a party to the transaction, satisfies both such debt and any liability for the price of such chattels, and prevents the party so delivering them from recovering their value upon an implied agreement for goods sold and delivered, upon the ground that the special agreement upon which they were delivered was a parol promise to pay the debt of another, which was void by the statute of frauds. One so delivering the goods and inducing the creditor to accept them in payment, is estopped from alleging the contract to be void and recovering their price.
    2. Upon all the testimony in this case as to whether the chattels in question were delivered in satisfaction of such a debt, pursuant to a previous agreement to that effect; Held, that there was such a conflict of evidence that the verdict of a Jury should not be set aside.
    (Before Robertson and Monell, J. J.)
    Heard, March 16, 1803;
    decided, March 28, 1863.
    Appeal by the plaintiff, from a judgment in his favor, and from an order denying a new trial.
    This was an action to recover the value of certain furni ture delivered by the plaintiff to the defendant, and alleged in the complaint to have been sold to the latter.
    The defendant’s original answer set up, as a counterclaim, a demand for rent against the plaintiff for about $150.
    
      On a trial of the issues the Beferee sustained the counterclaim, but the judgment entered upon his report was reversed upon appeal, upon the ground that a large part of the rent which he had allowed to the defendant was due, not from the plaintiff but from his son, and that the plaintiff’s promise to pay it was void- for not being in writing, under the statute of frauds. The decision is reported in 4 Bosw., 149.
    The defendant then put in an amended answer, by which 'he set up as a defense, that a son of the plaintiff was indebted to the defendant for the residue of the rent of certain premises let by the latter to him, after crediting to the former a certain sum for goods furnished by him to the latter; that the plaintiff subsequently occupied such premises under his son, and it was agreed between the parties to this action that the plaintiff should continue to occupy such premises until he could sell a stock of goods then upon them, and that the defendant should take no proceedings to dispossess him, and that the plaintiff should pay therefor the same rate of rent as was reserved in the lease to the son, and should also discharge the indebtedness for arrears of rent of the latter, and that lie should do this by delivering the goods mentioned in the complaint, which were to be received by the defendant at a fixed value, and as soon as the amount of such rent to become due from himself should be determined, the balance on either side should be paid by the party from whom it was due, to the other. The answer alleged the performance of this agreement by the defendant, and the delivery of the goods mentioned in the complaint, in pursuance thereof. It also alleged that the amount due to the defendant under the agreement, exceeded that due to the plaintiff for the value of the goods delivered by him. The rent of such premises, due from the plaintiff to the defendant, was also set up as a counterclaim, or by way of recoupment.
    A reply put in by the plaiutiff admitted the lease of the premises mentioned in the answer by the defendant to the son of the former, and the indebtedness of such son to the defendant, hut denied everything else alleged in the answer.
    The cause was tried on October 27th and 28th, 1859, before Mr. Justice Slosson and a Jury.
    The defendant, being introduced as a witness for himself, testified that about the 1st of February, 1856, he called on the plaintiff and asked who was to pay the back rent due him. The plaintiff said he would not, but, upon being told he would then have to leave the store, he finally promised to pay such back rent if the defendant would let him stay to sell out, for a mouth or two. To which the latter said, he would make it easy for him as long as he did that, and that he would take furniture. The plaintiff assented, and the pieces of furniture were selected, at certain prices, amounting to $140; they were not quite finished, and it was agreed that the balance either way should be paid. The defendant retook possession of the store in March, after the plaintiff had occupied it about a month and a half. In May following, the defendant gave directions for finishing the pieces of furniture selected, and delivering it to him. Hothing was said at that time about the agreement. He received the furniture in the early part of June. A bill was subsequently rendered for such furniture by the plaintiff, in which he charged more for one piece than, as the defendant testified, had been agreed on. In September following, he called on the plaintiff and complained of the charge, when the latter said that, as the bill was disputed, he would then not pay the back rent, as the defendant did not have it in writing, and could not hold him responsible.
    Another witness (Dean) testified that he called on the plaintiff to see about a bill due by his son to a sugar refining company, when the plaintiff said they could not look to him for their bill, “ that he had already agreed with “ Mr. Moller to pay the back rent due by his son, and also “ for the time he was in possession, and that he should pay ‘‘nothing more.” The same witness afterwards called on him, on behalf of the defendant, to try and settle the accounts ; but the plaintiff refused to talk about the matter, and referred him to a lawyer. On another occasion, during the pendency of this action, upon the same witness informing the plaintiff that the defendant said he owed him for the back rent, the former asked if he had it in writing, and said if he had not he could not hold him. The plaintiff subsequently met the witness and reproached him for disclosing such conversation in his testimony.
    The plaintiff testified that the defendant came in June, 1856, and bought the articles of furniture in controversy; that on the prior occasion when he called, he went away angry, because the plaintiff refused to pay the back rent; and that he told him the prices of the articles were certain amounts, which he afterwards put in his bill; and that nothing was then said about the rent of the premises.
    The defendant testified that the plaintiff’s son was present when the agreement was made. That son testified that he heard the conversation; that the defendant wanted the plaintiff to pay the back rent of the store, which the latter refused; that nothing was said about furniture ; that the defendant did not go up stairs where it was; arid that when the goods were ordered he was also present, but heard no conversation.
    The charge of the Judge, to which the plaintiff excepted, is stated in the opinion of the Court.
    The Jury found a verdict for the plaintiff for the difference between the amount of the rent due the defendant and the value of the furniture, as testified to by the plaintiff.
    A motion was made for a new trial at Special Term, which was denied, and an appeal was taken from the order denying such motion, as well as from the judgment.
    
      S. Jones, for plaintiff, appellant;—
    Insisted that the verdict was against evidence.
    
      Robert Benner, for defendant, respondent.
    I. The agreement between the parties for the payment of the back rent, if invalid, was not illegal, and they having executed it by the delivery and receipt of the goods in performance thereof, as determined by the Jury,, the statute of frauds has no further application to it. (Abbott v. Draper, 4 Denio, 51; Allen v. Aguirre, 3 Seld., 543.) The reference to the back rent was only-' for the purpose of fixing the amount the plaintiff was to pay for his privilege. (Trustees First Baptist Society, &c., v. Robinson, 21 N. Y. R., 234; Rhodes v. Rhodes, 3 Sandf. Ch., 279; Stone v. Dennison, 13 Pick., 1; Pomeroy v. Winship, 12 Mass. R., 514; Parsons on Contracts, vol. 2, pp. 319, 338.)
    II. Under any aspect of this case, the verdict under the Judge’s charge determines conclusively that the articles in question were delivered and received in performance of the agreement; and the plaintiff having chosen to execute an agreement originally invalid, cannot afterwards rescind • his own contract, and. recover what he voluntarily paid and delivered in performance of it. These articles became the defendant’s absolutely, the moment he thus received them. (Abbott v. Draper, 4 Denio, 51; Dowdle v. Camp, 12 Johns, 451; McKnight v. Dunlop, 1 Seld., 537; Westfall v. Parsons, 16 Barb., 645.)
    III. Even should we admit that the plaintiff, under the circumstances stated in the last proposition, could repudiate his agreement,- it will still follow, upon every principle of law and of fair dealing, that he could not be permitted to recover back the articles thus delivered until after demand, and notice of his intention to abandon his contract. (Dowdle v. Camp, 12 Johns, 451; Abbott v. Draper, 4 Denio, 51.)
    IV. The plaintiff’s claim is unconscionable, and from the circumstances of the case, and his own statements, incredible.
    V. A verdict will not be set aside as against evidence, unless it appears that the Jury clearly and palpably decided against the weight of evidence. (Erben v. Lorillard, 23 Barb., 82; Mackey v. New York Central Railroad Company, 27 Barb., 528; Williams v. Vanderbilt, 29 Barb., 491.) Hew trials as against evidence can only be granted on payment of costs. (Ward v. Woodburn, 27 Barb., 346,; Vandeventer v. N. Y. & N. H. R. R. Co., 27 Barb., 244.)
   By the Court—Robertson, J.

The only question of law arising in this case is, whether the part of the charge of the presiding Judge excepted to, —viz.: that the plaintiff was “ entitled to recover the value of the arti- “ cles sold, without any deduction on account of the back “ rent, unless the agreement was fully executed by delivery “ of the articles, and receipt of the same in .performance “ thereof; but if it had been so fully executed in such manner, then the defendant was entitled to be allowed “ the amount of the back rent,”—was correct. He had previously charged the Jury that the original agreement to pay such back rent was void, and wqs hot sufficient to support an agreement so¿! to pay it: This raises the question whether the delivery of chattels to a creditor of a third person, in satisfaction of the debt of such third person, without his being a party thereto, satisfies such debt, and prevents the party delivering them from recovering their value, as for goods sold and delivered, because they were delivered in performance of a void contract. I do not regard any of the cases arising out of other provisions of the statute of frauds, such as the sale and delivery of merchandise, as throwing any light upon this question. Unquestionably the delivery of any goods may be made the consideration of any promise not within the statute.

Most of the cases in which the interpretation of that part of the statute of frauds which avoids promises to answer for the debt of another (2 E. S., 135, § 2, subd., 2) is involved, have arisen on an attempt to enforce the promise. They leave the question undetermined how far the actual delivery of goods, or even money, in payment of the debt of another, without a written agreement to that effect, satisfies such debt and discharges the recipient of the goods or money from incurring any liability for them. It would seem that the evil the statute was* intended to guard against might arise as well from the conversion, by parol evidence, of a sale of goods, or loan of money, into the mere payment of the debt of a third person, as from the proof, by like evidence only, of a prior executory promise to pay such debt. By the provision of the statute just referred to, the law presumes either that it is so rare for one man to assume to pay another’s debt, particularly without some inducement, or else that there is such danger that doubtful expressions may be converted, by inattentive or biassed witnesses, into positive promises, as to render it necessary to require the contract to be in writing, expressing the consideration. And it has been even held that partial performance of an agreement, or delivery of property, as a consideration for the promise, is not sufficient to uphold it. Thus, in Lord Lexington v. Clark, (2 Vent., 223,) the payment of the debt of another, a promise to pay which constituted part of the consideration of a-contract, it was held would not sustain a promise to pay another sum as a consideration for the occupation of certain premises. But this was modified in Wood v. Benson, (2 Crompt. & Jer., 94,) and Rand v. Mather, (11 Cush., 1,) where the legal part of a contract, so far as it was separable from a part that was void, was upheld. In Mallory v. Gillett, (21 N. Y. R., 412; S. C., 23 Barb., 610,) a promise to pay the debt of a third person, in consideration of the creditor delivering up to his debtor goods on which he had a lien for such debt, was held to be within the statute, and void, overruling Gardiner v. Hopkins (5 Wend., 23,) Mercein v. Andrus, (10 Wend., 461,) Singerland v. Morse, (7 Johns., 463,) and various other cases. The same principle was held in this Court, on a prior occasion, in Doolittle v. Naylor, (2 Bosw., 206.) Aone of these cases, however, affect the question of an executed contract to satisfy the debt of another. In such case, of course, the chattels or money are proved to be delivered, and the only question is, on what terms. An absolute gift«of them could be proved by parol, and there seems to be no reason why their application in payment of a debt may not be equally so. Of course, probabilities and circumstances could be brought to bear on the fact of the agreement in either case. A third party, delivering chattels in satisfaction of a debt, as in this case, after inducing the creditor to accept them in payment of a debt., is estopped from alleging the voidability of the contract and claiming the price of the goods, as if they had been sold.

The only remaining question in the cause is one of fact, whether the chattels, the price of which is sued for, were delivered in satisfaction of the defendant’s claims for rent against the plaintiff and his son, pursuant to a previous agreement to that effect. To establish this we have the testimony of the defendant, corroborated by that of Dean, as to the promise to pay the back rent, while the testimony of the plaintiff and his son is directly against it. I do not see that Dean’s statement discredits the defendant’s as to the agreement, because the plaintiff might well have used the term “pay” in regard to the back rent, without meaning payment in money. Hor does he contradict himself by saying that the plaintiff said “he would pay the rent while he was there, or something to that effect,” because both may have been said, as he testified on his direct examination. The Jury had a right to consider whether the omission to state, in the answer first put in, the special agreement, was made because no such agreement existed, or because the counsel for the, defendant deemed it was sufficient to allege an indebtedness for rent generally. The Keferee found in his favor, on a former trial, on that ground, and the amendment was made after this Court, at General Term, reversed the judgment on the opposite ground. The case then rested on the defendant’s testimony, corroborated by Dean, and the testimony of the plaintiff and his son on the other. The account of the defendant was not improbable in itself. He allowed the plaintiff to stay in the store after he had threatened to dispossess him. The debt was due from a son of the latter, who had transferred to his father all his means of payment. The value of the furniture was near that of the debt due and to be received. But it was impossible to reconcile the testimony. The plaintiff and his son swore that nothing was said about furniture in the interview in which the defendant claims that the agreement was made and the furniture selected. It might have been a circumstance of some value in disproving the defendant’s statements, that the furniture was not made or had not been covered in February, when the supposed agreement was made. As the testimony stands, it was a pure conflict of evidence, in which the weight of it is not so clearly one way as to justify setting aside the verdict.

The judgment and order denying a new trial must be affirmed with costs.  