
    Cox v. Weller.
    
      Statute of frauds —promise to pay debt of another.
    
    Plaintiff, upon a contract for the sale of lumber to F., had delivered a part of the lumber, when] defendant bought F.’s interest, in consideration whereof defendant verbally agreed to pay for the lumber already and to be delivered. Held, that the agreement was not within the statute of frauds, and could be enforced by plaintiff against defendant.
    APPEAL by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury.
    The action was brought by George 2ST. Cox against Theron H. Weller, for lumber sold and delivered. Sufficient facts appear in the opinion.
    
      Hulse, Little & Finns for appellant.
    
      D. D. McKoon, for respondent.
    Present—Barnard, P. J., Tappen and Donohue, JJ.
   Barnard, P. J.

This appeal presents ¡chiefly a question of fact. A Mr. Pitch had a contract with plaintiff for lumber ; part of it was delivered and part was in process of delivery at Circleville station, Orange county. On the 7th of February, 1873, Fitch sold all his interest in the lumber to defendant. The plaintiff and Fitch both testify that, in consideration of the sale, defendant agreed to ■pay plaintiff on bill for lumber already delivered and for future deliveries; that the agreement was made by and between Fitch, Cox and Weller. The defendant has no remembrance of any agreement with plaintiff, but says that “he (Fitch) proposed to send the lumber in my name, * * and the money came to me and I was to pay the men.” The jury have found the issue upon this question in favor of the plaintiff.

The only,question remaining is a question of law upon the facts thus found. Was it within the statute of frauds when defendant agreed to pay plaintiff a claim he had against Fitch for lumber in consideration of the sale of the same lumber by Fitch to defendant? It is well settled that such a promise is valid, and may be enforced by plaintiff. Judson v. Gray, 17 How. 289; Lawrence v. Fox, 20 N. Y. 268.

The judgment is affirmed, with costs.

Judgment affirmed.  