
    Clark and Vanlieu vs. John A. Hall.
    
    CERTIORARI.
    If A. being indebted to B. gives Mm an order on 0. for certain goods, and C. having the goods in his possession, and also having a claim against A. agrees, by parol, with B. that ho will dispose of the goods and apply the proceeds equally to the payment of their respective claims, this is not a promise within the statute of frauds. ^
    This court will not, upon certiorari on appeal, enquire into disputed facts.
    This was a certiorari to the Court of Common Pleas of the county of Somerset, brought to reverse the judgment rendered by that court on an appeal from the judgment of a justice of the peace. The state of demand filed before the justice, was as follows : “ John A. Hall against Abraham S. Clark and John B.. Vanlieu, trading under the name, style and firm of Clark and Vanlieu. In debt.
    The plaintiff demands of the defendants one hundred dollars; for that, whereas one John T. McCormick, heretofore, to wit, on the fourth day of February, in the year of our Lord one thousand eight hundred and twenty-six, was indebted to the plaintiff in a large sum of money, to wit, the sum of ninety-eight dollars, for butcher’s meat, wool and carting, and the said John T. McCormick, in order to secure the payment of the same to the plaintiff, on or about the 16th day of March, A. D. 1826, gave him, the said plaintiff, an order .on Messrs. Clark and McPherson, to receive four cases of finished hats, together with some hatting materials therein also contained; and the said hats came to the hands and possession of the said defendants, to wit, on the 25 th day of March, A. D. 1826, when it was agreed by and between the said plaintiff and defendants, (they the said- defendants *79] *having, or pretending to have, a claim and demand on and against the said John T. McCormick, for a large sum of money), that the said hats should be disposed of at the best market price, for their mutual benefit, and that the proceeds thereof should be applied towards the satisfaction of their respective claims on the said John T. McCormick.; • that is to say, the said plaintiff and defendants were, by the agreement aforesaid, to share dollar for dollar, until the claim of the said plaintiff on the said John T. McCormick, should be satisfied, and the residue to be appropriated exclusively to the payment of the remainder of the demand of the said defendants; and that the said defendants, in consideration thereof, were to take upon themselves the burden and trouble of selling and disposing of said bats; and the said plaintiff saith that the said defendants afterwards disposed of said hats at public auction, to Smith and Ackerman, for the sum of two hundred and eighty dollars; and the said plaintiff further saith, that the said defendants have received the said sum of two hundred and eighty dollars of the said Smith and Ackerman, and appropriated it to their own use, and have neglected and refused to pay the said plaintiff the said sum of money, the amount of the claim and demand, which he the said plaintiff had against the said John T. McCormick, which by the said agreement they were bound to do, or any part thereof, or of the proceeds of said sale, and still do neglect and refuse so to do, whereby an action hath accrued to the said plaintiff, to demand of and from the said defendants the aforesaid sum of one hundred dollars above demanded.”
    A judgment was rendered by the justice in favor of Hall. Whereupon Clark and Vanlieu appealed.
    The following state of the case, agreed upon by the attor- . neys of the parties, was submitted to the Supreme Court, as the case made and proved by the respective parties before the Court of Common Pleas, on the trial of the appeal:
    
      “ The said John A. Hall, the appellee and plaintiff below, .in support of the issue on his part, offered Charles Hall as a ■witness, who proved the plaintiff’s day-book. The plaintiff then offered Aaron Vannatta as a witness, who testified that the name John T. McCormick, signed to an instrument purporting to be an order on Clark and McPherson, in favor of the said plaintiff, dated March 16th, 1826, for the delivery of a quantity of hats, *was in the proper handwriting [*80 of the said John T. McCormick; and also, that the name .John T. McCormick, signed to a receipt for §600, received .of said plaintiff the 16th of March, 1826, was in the handwriting of the said John T. McCormick. He also testified, that the hats, mentioned in the said order to the plaintiff, were sold by the defendants for §280, which, in the opinion ■of witness, was the best price that could be obtained for them. -That the hats brought their full value. Upon being .cross-examined, witness testified that he was a hatter by .trade, was one of McCormick’s creditors, and in New York when the sale of the hats was made ; thought tlio defendants took pains to make the best sale of the hats in their power ; that part of the hats were in a very bad, unfinished state, .and that §280 wras more than he would have been willing to have given for them.
    The plaintiff then offered Cyrus Barber as a witness, who testified that on the 17th of March last, he became acquainted with the parties; was employed by Hall to assist him in getting the hats; found the hats at the coffeehouse slip, New York, part on board of a sloop, and part on the dock ; they wore in boxes; found Vanlieu, Mr. Sergeant .-and others there; made a demand of the hats in the name of Hall; they made .known to Vanlieu, Hall’s claim; forbid all persons to take the property; they (Vanlieu and others) put the hats on carts, and ,we followed on; Vanlieu refused .to shew any claim on the hats; Vanlieu said that he was going to store them at a certain place which he mentioned. Before the hats wore taken off tho carts, the parties came together, and they talked it over. Vanlieu produced a bill’ of sale from McCormick for the hats, dated 17th March;: he said the property was worth $800 or $900. Hall produced the evidence of his claim. The parties then went by themselves to talk it over, and after being gone a few minutes, they called witness to them, and said, they had agreed that the hats should be sold for the best price-that could be obtained for them; that they should share dollar for dollar, until Hall’s claim should be-discharged; that Hall’s claim was about $120. That ■Clark' and Vanlieu’s was about 220 dollar-s. The question then was asked by witness, who should take charge of the hats? Hall said that Vanlieu had better take charge-of them, as his claim was the largest; that they were not to be in a hurry to sell the hats, but wait the market *81] ^Witness asked if he should reduce the agreement to writing ? They said that it was not necessary as they' understood it. They then returned to a grocery store,, where the other persons were waiting. This was about ten or eleven o’clock in the morning.
    To this evidence, the defendants, by their counsel,, excepted upon the following grounds, viz :
    1. That the evidence offered went to prove a parol promise on the part of the defendants to the plaintiff’s demand against McCormick, and that such promise was void by the-statute.
    2. That there was no consideration for such promise and agreement, the said plaintiff not having any right to the said goods by virtue of said order upon Clark and. McPherson.
    3. That the promise offered and proved, if any such was-made out by the evidence, was a promise made by one-partner, relative to a matter disconnected with the partnership concern of the defendants, and, consequently, not binding on them as partners.
    The court, after hearing the counsel of both parties, overruled the objections.
    
      The defendants then offered Andrew Linet as a witness, who testified that he was in Hew York with Vanlieu, who had the possession of the hats when Hall and Barber came to them. It was at the wharf. The boxes of hats were put •upon a cart, and taken into Pearl street. Witness went with the boxes. On his way back from Pearl street he met with Vanlieu, Hall and Barber, on their way after the hats, .witness having went ahead to find a place to store the boxes. That Vanlieu, Hall, Barber, and witness, wont to a grocery store, as testified by Barber. The parties thought the hats worth 800 dollars. That Vanlieu and Hall went together, and that when Mr. Barber went up to them, witness went also. That at the close of the conversation, and when the parties were just going to separate, it was agreed between 'Vanlieu and Hall, that if Hall would come to Somerville and got an order from McCormick, upon Clark and Vanlieu, for his demand against McCormick, that he Vanlieu, would pay it out of the proceeds of the sale of the hats, after satisfying his own claim. That this was agreed on after Vanlieu and Hall had been together at the grocery store, and the last conversation they had, for they all immediately after separated. That witness and Vanlieu went to their dinners, and he did not see the parties ^together’again, till [*82 they mot upon the trial before the justice. That Mr. Bar-did not go to Hall and Vanlieu at the grocery store till witness went, as witness believes; nor was ho with them except witness was present, to his knowledge. That no such agreement was made by the said Vanlieu with the said Hall in his presence or hearing, as stated by the said Barber, as witness believes. Witness thinks if there had have been, he must have heard- it. Witness heard some-thing said about a defect in Hall’s papers in Hew York, but what it was, he can’t say.
    John M. Mann, esq., was sworn on the part of the defendants, who testified that some days after Clark and Vanlieu .had got possession of the hats in Hew York, and after plain* tiff returned from Hew York, the plaintiff came to witness- and informed him that he had been to Clark and Vanlieu with an order, which they had refused for informality. Witness understood that it was the same referred to by Mr. Barber, and was presented to Vanlieu in Hew York. That Hall wanted a different order from McCormick on Clark and Vanlieu for the balance of the money arising from the sale of the hats, after paying their own claim, which Hall informed witness Vanlieu would accept. That witness could' not precisely understand what Hall wanted, but thought a power of attorney from McCormick would be best. Witness went to see McCormick after this conversation, who-informed witness that he considered Clark and Vanlieu safe for their money; that there would remain a surplus in the-hands of Clark and Vanlieu, after paying themselves, which he wished to apply towards paying Hall, Trimmer and Vannatta. That after this witness saw plaintiff and told him what McCormick wished, that plaintiff was anxious to have it done. That plaintiff with Vanlieu, and some others, met with McCormick, where it was agreed that Clark and Van-lieu should sell the hats, giving notice to witness to attend if he thought proper; and out of the moneys arising therefrom, first pay themselves their demand against McCormick, and then the balance to be paid over by them to witness, for the use and benefit of plaintiff, Vannatta and Trimmer, equally. That this agreement was assented to by the plaintiff; that a power of attorney was accordingly drawn from McCormick to witness; that this was-a number of days after Vanlieu and plaintiff were in Hew York, as stated by Mr. Barber and Linet. Witness did *83] *not. understand from plaintiff at any time above referred to, that Clark and Vanlieu were to pay his claim, or any part of it, till theirs was first paid. The hats were sold without notice being given to witness as above mentioned. At the time of the above mentioned agreement, the hats were supposed worth $800 or $900. The power of attorney above referred to, was not executed.
    
      Defendants also offered an instrument, in writing, under seal, from the said McCormick, to the said Clark and Van-lieu, for said hats, dated the 17th day of March, 1826, purporting to be a sale and transfer of said hats to the said Clark and Vanlieu.
    This paper was read without being proved, by Joseph Doty, the subscribing witness, under an agreement made between the parties and their counsel before commencing said trial.
    
      Hartwell,
    
    for the plaintiff in certiorari, relied upon the following reasons for the reversal of the judgment of the Court of Common Pleas :
    1. Because this is an action founded on a parol promise made by the defendants to pay the debt of John T. McCormick, a third person, and is therefore not binding.
    2. Because the promise relied on by the plaintiff for a recovery, is to'pay him out of a particular fund over which the defendants had no control, and which belonged to the said John T. McCormick, and to whom the defendants were accountable for the same.
    In support of the first reason relied upon, he said, the declaration sets out a promise on the part of the defendants to pay plaintiff a debt, which one J. T. McCormick owed him. This promise is within the statute of frauds; for where an action would lie against the party contracting originally, the case is within the statute of frauds. 1 Comyn on Con. 51, 70; 8 John. Rep. 253; 2 Stark. .Evi. 597-8; 16 Mass. Rep. 13; 1 South. Rep. 219, Dilts v. Park. The defendant in this case, who made the promise, had the property of the person originally liable, in his possession, at the time. The doctrine laid down in Comyn on contracts, is recognized in Rose v. Johnson, 1 Penn. Rep. 5; Smith v. Torney, ib. 98; Hoffman v. Larue, 2 Penn. Rep. 685, and Shepherd v. Laylor, ib. 618.
    The promise set out in the declaration, is void upon another *ground. The order from McCormick was [*84 upon Clark and McPherson, who never saw or had possession of the goods, (and who were in no wise connected with Clark and Vanlieu) to deliver the goods to him. Hall relies upon a contract made between him and the defendants to sell the goods, and divide the money. Neither Hall nor the defendants were authorized by McCormick to enter into any such arrangement. It appears that this was a promise made by one of two partners, and not connected with the partnership concern, and is, therefore, void as against the absent partner.
    2. In support of the second reason relied upon, he said, admitting that the promise made in New York was binding, we prove by the testimony of Mr. Mann, that it was waived afterwards in Somerville, and that Mr. Hall agreed to come in with other creditors for a dividend, after the.claim of Clark and Vanlieu was paid. Mr. Mann confirms what Linet states, and the testimony of Linet and Mann, is deserving of more credit than Barber.
    
      Thompson, contra.
    
      
      Note. — The law as laid down in this case was changed by “ an act relative to the writ of certiorari,” approved April 6, 1871, (Pamph. Laws of 1871, page 124), which directs the court “ to determine disputed questions of fact as well as of law and according to the justice of the case to reverse or affirm in part or in the whole any tax or assessment or other order or proceeding, and to inquire into the facts by deposition taken on notice,” &c. This law was by Rev. Stat. (March 27,1874, page 50), modified by limiting the duty of the court in this behalf to cases of writ of certiorari "touching local or public improvements” only.
    
   ' By the Court. As to the first reason relied upon, we think that the undertaking of the defendants below was not within the statute of frauds; and the objection on this ground cannot avail.

As to the objection, that the Court" of Common Pleas decided against the weight of facts, it is settled, that we are not to weigh the testimony on certiorari on appeal.

Let the judgment be affirmed.  