
    Tolhurst et al. v. Powers.
    
      (Supreme Court, General Term, Third Department.
    
    July 11, 1891.)
    Statute oe Frauds—Promise to Pat Debt oe Another.
    The verbal promise of defendant to pay to plaintiffs a debt which B. owed plaintiffs, made to induce them to ship to defendant, with B.’s consent, a machine he-longing to B. in plaintiffs’ possession, but on which they had no lien, was not binding on defendant, though shipment was made, being without consideration moving from plaintiffs to defendant for the promise. Landón, J., dissenting.
    Appeal from judgment on report of referee.
    Action by William H. Tolhurst and another against Joseph A. Powers. From a judgment dismissing the complaint, plaintiffs appeal.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Davenport & Hollister, (Nelson Davenport, of counsel,) for appellants. Frank S. Black, for respondent.
   Learned, P. J.

Leaving out all the unimportant facts, the case in the aspect most favorable to plaintiffs stands thus: On the 17th of December one Ball owed the plaintiffs for work $522.15. There was at that time in their possession a machine which had belonged to Ball, which he had sold and delivered to Crane, and which Crane had returned because it did not work. The machine was in plaintiffs’ lawful possession, but they had no legal lien or claim of any kind upon it. Ball, or, if not Ball, then Crane, was entitled to immediate possession. The defendant had paid some money for Ball, and Ball and defendant desired that the machine should go into defendant's possession. He had not, however, at that time, any title to it. Ball and defendant were present at plaintiff’s machine-works in Troy, and wished to have the machine shipped to defendant at New York. Plaintiffs said they wished to know who was to pay the balance above mentioned which Ball owed thorn. Defendant said he would pay it. Thereupon the machine was shipped by plaintiffs to defendant, or rather Crane came for it to plaintiffs’ works, and had it sent by express to defendant. There was no written agreement. Plaintiffs subsequently called upon defendant for the aforesaid balance. He at first promised verbally to pay, but afterwards refused. The question is whether the verbal promise of defendant to pay plaintiffs a debt which Ball owed them, made to induce them to ship to defendant, with Ball’s consent, a machine belonging to Ball, and on which they had no lien, is legally binding on defendant, after plaintiffs have mad'e said shipment. What consideration existed for the promise ? The plaintiffs had no lien on the machine, and could not rightfully have retained possession. If their surrender of possession was an act which they were legally bound to do, then they parted with nothing. It would be a premium on wrong-doing to say that the courts would enforce a promise to pay money, made to induce one to surrender to the rightful owner property to which the possessor had no title and no right of possession. One who has possession, but no right to possession whatever, may possibly delay the rightful owner by refusing to deliver. But to say that such possessor parts with anothing of value when he merely does his duty, and gives up what he has no right to retain, is very inconsistent with sound principle. Suppose Ball had not owed plaintiff, and they had insisted that they would not give up the machine unless defendant promised to pay them $500, and he had so promised, would there have been any consideration for the promise? There was not here the compromise of a disputed claim. Nothing is shown to establish that the plaintiffs had, or that they even claimed to have, a lien on the machine. Possibly they could have compelled Ball to bring an action, as it would not have been lawful for him to enter on plaintiffs’ premises forcibly to get his property. But the voluntary surrender of what one has no right to retain cannot be a good consideration for a promise. The promise parts with nothing. He gives up nothing to which he has or claims a right. This is not a case where the original debtor conveys property to another in consideration of his promise to pay the debt. The defendant made no promise to Ball. Ball conveyed nothing to the defendant. Subsequently, it is true, in the following February, Ball did convey this machine to defendant. But that conveyance was to secure moneys advanced by defendant, and was not in consideration of any promise to pay this debt to plaintiffs. Further, this debt was Ball’s, and defendant’s promise was void under the statute of frauds. We need not discuss this at length. It is enough to refer to Ackley v. Parmenter, 31 Hun, 476, 98 N. Y. 425. The judgment should be affirmed, with costs.

Mayham, J.

Assuming, as we must, that the plaintiffs had a mere naked possession of this dynamo, with no interest in or lien upon it, so that, after a demand by the real owner, their possession would be wrongful, I do not see how its delivery to the defendant, who was entitled to the possession, furnishes any consideration of harm to the plaintiffs, or benefit to the defendant, to support the promise of the latter to pay the debt of Ball to the former. I think, therefore, the judgment should be affirmed.

Landon, J.,

(dissenting.) We think the 'plaintiffs were entitled to a recovery. They had possession of the dynamo, 'and they intimated their intention to retain possession until they should receive some further assurance that their bill against Ball would be paid than Ball’s responsibility or credit afforded them. The defendant was interested in the dynamo, upon which he had expended both time and money, and desired to obtain possession of it. Grant that plaintiffs had no lien upon the dynamo against Ball which they could maintain, if a contest should be made, they nevertheless had the possession of the dynamo, and had the physical power to retain that possession, and try to defend it in the courts. They thus could retain the possession until some indefinite future time. The defendant desired possession immediately. It does not appear that he had any title to the dynamo or lien upon it, but evidently from curiosity, scientific interest, or in the hope to obtain indemnity for his expenditures upon it, he desired to obtain possession. Ball, the owner of the dynamo, was willing the defendant should obtain possession. It was for him to dispute plaintiffs’ intimation of a lien, if he thought proper; but he did nothing of the kind. The case, then, is this: Plaintiffs had possession of Ball’s dynamo, claiming to hold it until payment of their bill against Ball should be secured. The defendant desired to obtain possession "of the dynamo, and had no title to stand upon. Ball, the real owner, did not dispute plaintiffs’ claim. He consented that plaintiffs might deli ver the dynamo to defendant, but he gave defendant no authority to take it from plaintiffs against their consent. The defendant thereupon, by agreeing to pay them the amount of their bill against Ball, bought of them their possession, and the abandonment of their claim of lien, and thus obtained possession of the dynamo. The defendant by his promise obtained possession of the dynamo, and the plaintiffs parted with it. True, Ball was not released from his obligation to pay the debt, but the defendant, in consideration of the benefit now moving to himself from the plaintiffs, added his promise to pay to the old promise made by Ball. The case falls within the third classification made in Leonard v. Vredenburgh, 8 Johns. 29, “in which the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties,” and thus is not within the statute of frauds. Mallory v. Gillett, 21 N. Y. 412. The defendant’s contention that, because plaintiffs had no valid lien upon the dynamo, they had nothing to sell or release or deliver to defendant, is not tenable. We have already shown that, thougli they may not have had a valid lien, they had possession, and all the advantages of position; and if the defendant had obtained from Ball, or could have obtained from him, the means to compel them to surrender what they had, he nevertheless was at liberty to buy them out, and he chose to do so. J udgment reversed; referee discharged; new trial granted; costs to abide event.  