
    SUPREME COURT.
    The New-York and Erie Railroad Company agt. James Gilchrist.
    The plaintiffs claimed as common carriers to recover of the defendant a certain sum for the transportation of cattle over their road. They relied upon their lien upon the cattle for their freight, not knowing certainly who the owner was. The defendant agreed to become responsible for the freight on the delivery of the cattle to a third person; thereupon the plaintiffs delivered them; and the defendant (being a butcher, but not the owner,) sold some of the cattle and received the proceeds, out of which he retained and was to pay by express agreement with the individual in whose name the cattle were shipped, the amount of the freight claimed. And the defendant subsequent to the delivery of the cattle by the plaintiffs, promised to pay them.
    
      Held, that the promise of the defendant did not come within the statute of frauds, it was an original undertaking; and there was abundant consideration, both of benefit to the promissor and harm to the promissee, for the promise by the defendant to the plaintiffs.
    
      New - York General Term,
    
    
      September, 1858.
    
      Present, Davies, Sutherland and Hogeboom, Justices.
    
    This was an action to recover the sum of $786, for the transportation of certain cattle over the plaintiff’s road from JDunkirk to Bergen, in September, 1854. The defence was that the promise to pay was by parol, and void by the statute of frauds. The trial was had before Justice Peabody, without a jury, on the 5th of March, 1857. He rendered judgment for the defendant, and the plaintiffs appeal to this court. The plaintiffs carried the cattle over their road, and there was no positive evidence that they knew who was the owner, apparently relying on their lien as common carriers for their protection. When the cattle arrived at Bergen, the person having them in charge, wished to remove them from the ears without prepayment of freight, which being refused, the defendant after a conversation with such person, agreed to become responsible for and to pay the freight. On the credit of which promise, the plaintiffs delivered them. The defendant also subsequently promised to pay. One Wing, in whose name the cattle were shipped, testified that they belonged to parties in Ohio. There were 97 in number, of which 27 were sold by the defendant, (who seems to have been a butcher or cattle dealer in Hew-York,) and he received the proceeds thereof out of which he retained by express agreement with Wing, the amount sought to be recovered in this action, for the purpose of paying the freight and under an agreement that he would do so. Having failed to do so, this action was brought against him to recover the amount.
    Mr. Eaton, for plaintiffs.
    A. L. Pinney, for defendant.
    
   By the court—Hogeboom, Justice.

There can be no doubt of the result to which considerations of justice and equity between the parties would lead us in this case, and I think it can be reached ivithout violence to the statute of frauds, or to any authoritative adjudications upon its provisions.

1. I regard it as a fair inference from all the evidence, and one which for purposes of justice we ought to adopt, that the defendant was either interested in the cattle as part owner or consignee, or in the profits expected to be realized from their sale. In either event, he had a sufficient motive for his conduct, and a pecuniary interest in procuring a discharge of the plaintiff’s lien. There was, therefore, an abundant consideration both of benefit to the promissor, and harm to the promissee, for the promise by the defendant to the plaintiffs, which induced the practical surrender of their lien. (Leonard agt. Vredenburgh, 8 Johns. 31; Farley agt. Cleveland, 4 Cow. 423 ; 2 Parsons on Contracts, 305.)

2. Again; I regard the transaction as an original one between the .parties, and not a collateral undertaking to answer for the debt of another. The plaintiffs relied upon the property for their security. If they had a debtor they did not know who he was. The defendant or a third person, wanted to get the property. It was delivered upon the defendant’s order at his request and upon his promise. It matters not whether it went immediately into his own hands or the hands of another. It was practically a delivery to him. Such third person must be regarded as his agent to receive it. (Elwood agt. Moak, 5 Wend. 235; Wyman agt. Smith, 2 Sand. 331.)

3. Again; the defendant is subsequently found in the possession of the property or a considerable portion of it, and making sale of it. His title to it or to its possession may possibly have been acquired subsequent to the removal of the „ cattle from the cars, but it is a more probable presumption that it was previous. He has in his own hands the proceeds of sale, and for the express purpose of satisfying this debt, and of discharging what was, I think, as to him a primary and original liability. The receipt of the money for the purpose indicated, is regarded by the learned judge who tried the cause in the court below, as sufficient to have turned the scale in favor of the plaintiffs, provided the pleadings had been so framed as to present such a cause of action. But the question at the trial did not turn on the pleadings; no objection was made to the testimony ; nor to the form of the complaint. If there had been, the defect, if any existed, would doubtless have been remedied on the spot. The cause was tried on its merits, and should be so decided. Technical objections to defeat justice should not be encouraged, and should never be listened to, unless promptly made and distinctly presented.

I am of opinion that the judgment of the circuit should be reversed and a new trial granted, with costs to abide the event.  