
    The Niles-Bement-Pond Company, Appellant, v. Gustav Ury, Respondent.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Frauds, Statute of — Promise to answer for debt, etc. of another — New consideration — Forbearance.
    Where one, who states that he has succeeded to another’s business, writes to one of the latter’s creditors that additional capital necessary to develop the business will be forthcoming and asks the creditor’s indulgence until matters are straightened out, which he hopes will be soon, when the creditor’s account will be taken up, and, relying upon the letter, the creditor forbears to sue the original debtor, such request for indulgence and promise, followed by the creditor’s forbearance for a reasonable time, will render the promisor liable for the payment of the creditor’s claim though no definite period of forbearance was specified.
    
      Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, first district, borough of Manhattan, rendered in favor of the defendant, on a submission of the controversy upon agreed facts as provided by section 241 of the Municipal Court Act.
    Mullan, Cobb & Mitchel, for appellant.
    Edgar Hirschberg, for respondent.
   Per Curiam.

The stipulated facts show a sale of machinery by the plaintiff-appellant to one Alfred A. Ury, doing business under the name and style of Manhattan Gas Appliance Company, which machinery was never paid for. Said Alfred A. Ury, after such indebtedness, was incurred, transferred to the respondent the said business, property and good will, including the goods sold by the plaintiff. Respondent then continued to conduct the business in the same place. After such transfer, plaintiff wrote a letter addressed to “ Manhattan Gas Appliance Company,” demanding payment, and received in reply the following letter:

Gustav Ury Telephone, 2014 Spring.

Successor to

“ Manhattan Gas Appliance Company,

Manufacturers of “ Gas Lighting Appliances,

“ 241-243 Centre Street,

“ Yew York, Jan. 24, 1906.

“ Yiles-Bement-Bond Co.,

111 Broadway,

Gentlemen.-— In reply to your letter of the 22nd inst., beg to say that I have succeeded to the business of the above firm.

The additional capital necessary to develop the business will he forthcoming, but as matters are in a very mixed condition, it is necessary for'me to ash your indulgence, until such a time when matters will be straightened out, (which 1 hope will be soon) at tuliich time the matter of yoyr account will be taken up with you. My reputation in the business world is of the best and I will furnish you any information you may desire.

“Appreciating any courtesy extended to me, I am,

“ Very truly,

“ Gustav Ury.”

Plaintiff, relying on said letter alone, “ forebore aim has continued to forbear to sue Alfred A. TJry. for the amount due.” The sole question is whether, under the facts as stated above, said letter of respondent rendered him liable to plaintiff for the amount of the bill. The plaintiff’s position is that the defendant promised to pay plaintiff a certain sum that was due plaintiff from a third person, to wit, defendant’s predecessor in the business, known as Manhattan Gas Appliance Company. The consideration was the forbearance by the plaintiff to proceed against said third person. As was said in the case of Strong v. Sheffield, 144 N. Y. 392, 394: “ There is no doubt that an agreement by the creditor to forbear the collection of a debt presently due is a good consideration for an absolute or conditional promise of a third person to pay the debt, or for any obligation he may assume in respect thereto, if or is it essential that the creditor should bind himself at the time to forbear collection or to give time. If he is requested by his debtor to extend the time, and a third person undertakes in consideration of forbearance being given to become liable as surety or otherwise, and the creditor does in fact forbear in reliance upon the undertaking, although he enters into no on forcible agreement to do so, his acquiescence in the request, and an actual forbearance in consequence thereof for a reasonable time, furnishes a good consideration for the collateral undertaking. In other words, a request followed by performance is sufficient, and mutual promises at the time are not essential, unless it was the understanding that the promisor was not to be bound, except on condition that the other party entered into an immediate and reciprocal obligation to do the thing requested. * * * The only qualification to be made is that in the absence of a specified time a reasonable time is held to be intended.” The duration of the forbearance in the case at bar did not depend upon the pleasure of the plaintiff, but did depend upon that of the defendant. To take advantage of defendant’s letter of January 24, 1906, it was incumbent upon plaintiff to wait a. reasonable time for defendant to get his affairs “ straightened out,” to use his own phrase. Plaintiff did wait a reasonable time, to wit, over six months. It is true that in the case at bar the request for forbearance did not come from the original debtor; but we do not think it of vital importance who makes the request, whether debtor or third party, when the creditor furnishes the consideration by his act of forbearance, and the promisor profits thereby. In the case at bar, appellant did acquiesce and forbear for a period of more than half a year, believing that respondent had actually bound himself to assume the indebtedness in the stead of his predecessor in the business, Alfred A. Ury. The defendant has, provided his letter evinces an intent to pay if indulgence be given, brought himself within the rule of Strong v. Sheffield, supra. We are inclined to the opinion that the respondent’s letter to appellant, viewed in the light of the circumstances that accompanied its making, is a request for forbearance and was intended as an assumption of his predecessor’s indebtedness upon acquiescence in its terms and forbearance being given. Forbearance is asked for in express terms. The agreed facts show that respondent was successor to the entire business 'of the debtor, including its good will and the machinery sold by plaintiff to Alfred A. Ury, the purchase price of which is the subject of this action. He replies to plaintiff’s letter concerning a matter which, according to defendant’s theory, should have been replied to by his predecessor, Alfred A. Ury. He asks plaintiff’s indulgence, evidently for himself and not for his brother. He says that the matter of plaintiff’s account will be taken up ” with it, the inference being that he, defendant, will take it up, since he is writing for himself and not for Alfred A. Ury, the original debtor. He refers to his own reputation in the business world. What has his reputation to do with it, if he did not consider he was assuming the debt ? He ends “ appreciating any courtesy you will extend to me,” not to his brother Alfred. If he were not bound to pay, how would an extension to Alfred A. Ury be of value to the defendant? Language must be interpreted in the sense in which the promisor knew or had reason to know that the promisee understood it. Gillet v. Bank of America, 160 N. Y. 549, 555; Tracy v. First Nat. Bank, 48 App. Div. 285, 288; Maloney v. Iroquois Brewing Co., 173 N. Y. 303, 310. If the view can be taken that the language of the letter in question is in any wise ambiguous, any doubt should be resolved in plaintiffs favor. As pointed out by appellant, in eases nearly related to that at bar, namely, cases of guaranty, the question has often arisen as to whether a person meant to bind himself in a certain way; and, where a person acting in good faith has been misled' to his injury, the guarantor has been held to account. Gates v. McKee, 13 N. Y. 235. In the case at bar appellant put full trust in respondent, forebore proceeding against another, and is now met by attempted evasion of liability. The objects which the parties had in view should be taken into consideration, as well as the condition of the parties. Solomon Tobacco Co. v. Cohen, 95 App. Div. 297. It cannot be successfully maintained that there was an absence of any personal interest on his part in requesting appellant to forbear. The defendant had the said machinery and, further, having succeeded to an apparently going business, would naturally be anxious to make it a success; and he must have been desirous of avoiding the entry of judgments against the business, which would tend to injure his credit, as a judgment against his predecessor, Alfred A. Ury, doing business as Manhattan Gas Appliance Company, would presumably* have that tendency.

We think the judgment should be reversed.

Present: Gildebsleeve, Davis and Hendrick, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  