
    Green and another, Respondents, vs. Hadfield, Appellant.
    
      November 20
    
    December 11, 1894.
    
    
      ■Contracts: Statute of frauds: Consideration: Evidence: Voluntary assignment.
    
    1. Plaintiffs, who. held as security for a debt to them a bill of sale of a part of their debtor's personal property, made an agreement with him and the defendant by which the debtor with plaintiffs’ consent transferred to the defendant all or nearly all of his property, including that covered by the bill oí sale, and plaintiffs surrendered the bill of sale to defendant, who, in consideration of such transfer and release, promised orally to pay the debt to plaintiffs. Held, that defendant’s promise, though in form a promise to pay the debt of another, was in fact a promise to pay his own debt in a particular way; and although the bill of sale had not been filed its surrender was a consideration moving directly from plaintiffs to defendant.
    2. Evidence of prior conversations between the debtor and the defendant, when plaintiffs were not present, was not admissible to show the terms of the tripartite agreement.
    
      3. The transaction did not amount to a voluntary assignment by the debtor for the benefit of creditors. If it were so, it would be void only as to creditors who attacked it, which plaintiffs have not done.
    Appeal from a judgment of the superior court of Milwaukee county: B,. N. Austin, Judge.
    
      Affirmed.
    
    Action upon contract. The plaintiffs were partners. They alleged in their complaint that*on the 30th of January, 1892, one O. H. Hadfleld was indebted to them upon three promissory notes, aggregating nearly $3,200, and that at that time said C. H. Iiadheld had a considerable amount of personal property, upon a portion of which the plaintiffs had security for said indebtedness; that on said date said ■O. H. Hadfleld made an agreement with the defendant, ■Joseph Iladfield, in the presence of the plaintiffs, by which he transferred to said Joseph said personal property, and, in consideration of the transfer, Joseph agreed to pay all the debts of said O. H. Hadfleld, including the indebtedness to the plaintiffs, and that they then and there consented to said agreement, and released their claim and security upon said property; that no part of the notes have been paid, though demand for such payment has been made on the defendant.
    The answer admitted the indebtedness of 0. H. Hadfleld to the plaintiffs, and that said C. II. Hadfleld transferred the personal property to the defendant, but alleged that such transfer was made solely in payment of certain debts then owing from, said C. H. Hadfield to Mm, and as security for Ms indorsement of certain notes of said 0. H. Hadfield, and denied all other allegations of the complaint. .
    Upon the trial the following special verdict was rendered: “(1) At the interview between these parties on the 30th day of January, 1892, did the defendant promise and agree to pay the plaintiffs’ indebtedness which 0. H. Hadfield or Hadfield & Company owed them? A. Tes. (2) Did 0. H. Hadfield or Hadfield & Co. transfer to the defendant his-property described in the bill of sale offered in evidence,, which formed a consideration, in whole or in part, for such promise? A. Tes. (3) If you answer the first question in the affirmative, did the plaintiffs participate and concur hi the agreement, and accept the promise of the defendant to pay the indebtedness of O. H. Hadfield or 0. H. Hadfield & Co. to them? A. Tes. (4) Did the plaintiffs, at the same time, surrender to the defendant the bill of sale which had previously been given to them by C. H. Hadfield or Hadfield & Co. to secure the indebtedness which the latter owed; them? A. Tes. (5) If you answer the first question in the affirmative, did the defendant accept such bill of sale in pursuance of such agreement and as a part thereof? A. Tes. (6) If the court shall be of the opinion that the plaintiffs are entitled to recover in this action, at what sum do you assess the damages? A. $3,356.82.” From judgment on this verdict for the plaintiffs, the defendant appealed.
    For the appellant there were briefs by Frarik M. R'oyt, attorney, and Geo. E. Sutherlcmd, of counsel, and oral argument by Mr. Sutherlcmd.
    
    For the respondents there was a brief signed by W. j. Tv/rner, of counsel, and Twiner S Timlin, attorneys, and oral argument by Mr. Turner.
    
   WiNslow, J.

The several contentions made by the defendant will be taken up in their order.

1. The objection that tbe verdict is contrary to the evidence is untenable. Examination of tbe record discloses sufficient evidence to sustain all of tbe findings of the special verdict.

2. It is next objected that tbe alleged promise of tbe defendant was a promise to pay tbe debt of a third person, and hence void because not in writing. Tbe facts established by tbe verdict or by uncontradicted evidence, which bear upon this question, are briefly as follows: Tbe plaintiffs bad a bill of sale of a part of tbe personal property in question, given by C. IT. Hadfield to them January 13,1892, ■which was in fact given as security for present and future indebtedness, which bill of sale had never been filed. On the 30th day of January, 1892, the plaintiffs met O. H. and Joseph Hadfield at a law office in Milwaukee. At this meeting, after lengthy negotiation, an agreement was reached by which 0. H. Hadfield, with the consent of the plaintiffs, transferred all, or nearly all, of his property, including that icovered by the unrecorded bill of sale, to Joseph, and the plaintiffs surrendered to bim their bill of sale; and in consideration of the transfer and release Joseph orally promised to pay the debt to the plaintiffs, and immediately took possession of the property and business. This statement of facts renders it quite clear that Joseph!s promise, although in form a promise to pay the debt of another, was in fact a promise to pay his own debt in a particular way. Johannes v. Phenix Ins. Co. 66 Wis. 50. There was not only a consideration for this promise moving from 0. H. Hadfield to the defendant, but also a consideration moving directly from the plaintiffs to the defendant, consisting of the surrender of the bill of sale. It is said that this bill of sale was void, 'except as between the parties, because it was in substance •a chattel mortgage and had not been filed. It was not, however, entirely valueless to the plaintiffs, and its release was clearly a benefit to the defendant. It was capable of

immediate filing prior to tbe close of the negotiations between the parties, and, moreover, the parties evidently treated it as a valid lien. Weisel v. Spence, 59 Wis. 301; Young v. French, 35 Wis. 111; Hewett v. Currier, 63 Wis. 387.

3. Upon the trial the defendant offered to prove certain-conversations which took place between himself and C. IL. Hadfield three weeks prior to the meeting of the parties at Milwaukee, as tending to prove what the terms of the contract-actually were. This testimony ■was excluded, and undoubtedly correctly excluded. The contract sued on is a tripartite contract made at the meeting of the three parties.. Upon familiar principles, its terms could not be affected, as-to one of the parties, by conversations between the other-two in his absence.

4. The contention that the transaction between the parties was void because it amounted to a voluntary assignment for the benefit of creditors is palpably untenable.. Even if the contention were correct, it would only be void . as to creditors who attacked it, and this the plaintiffs have not done. By this very action they directly affirm it.

A point is made that the trial judge incorrectly stated to the jury that the defendant handed the plaintiffs’ bill of sale to an attorney who was present, when the defendant’s evidence was that the attorney took it out of his hand. Examination of the context shows that the difference between the two statements is trivial and could not mislead the jury.

By the Court.— Judgment affirmed.  