
    Alfred B. Lehman, Respondent, v. Jennie E. Musgrave, Appellant.
    
      Provision in a MU of sale to a moi'tgagee, purchasing chattels under a foreclosu/re of her mortgage,' that she shall pay a debt of the mortgagor—it is not enforcible by the creditor of the mortgagor.
    
    The holder of a chattel mortgage employed an agent to foreclose it and conduct the sale, at which she purchased the mortgaged chattels and took from the .agent a bill of sale of them, in which she assumed and agreed to pay a debt owing by the mortgagor to a particular creditor.
    
      Held, that such creditor could not maintain an action upon the promise.
    Appeal by the defendant, Jennie E. Musgrave, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 29th day of June, 1897, upon the report of a referee.
    The defendant held a chattel mortgage against one William B. Musgrave, upon certain property and fixtures in his meat market, which mortgage she proceeded to foreclose under the danger clause therein contained, the mortgagor Musgrave having absconded and left the market and property unprotected. For the purpose of foreclosure she employed Bruce to take possession of the property ‘ and to sell the same at public sale. Bruce under such employment took possession of the market, publicly advertised for six days the sale of the property in due form of law, and then sold the same at public sale, at the market aforesaid, and the same was bid off by the defendant. No question is raised over the validity of such mortgage. It appears, however, from the findings of the referee, that at the time the property was so sold, Bruce executed to the defendant a written bill of sale of the property, in which was contained a clause “ by which the defendant assumed and agreed to pay the debts for meats sold, due from William B. Musgrave to the G. H. Hammond Company.” Also, it appears that prior to the sale Bruce had been offered by “ other parties ” for the property a greater sum than the defendant’s mortgage called for, and that such offer was communicated by Bruce to her. Bruce, as a witness, testified that she thereupon replied as follows: “ She replied that there were debts of Will’s that she would have to pay, and they would make hers more. She figured up the different amounts owing Fallís & Schermerhorn and the Johnstown Beef Co., and added them up. She said that she thought she ought to assume these debts. I said: ‘ If you will do that, all right.’ I sold it to her with that understanding, that she was to assume these debts.” The Johnstown Beef Company was the name under which the G. H. Hammond Company did business. On the trial it was claimed by the plaintiff that the bill of sale was lost, and parol evidence of the clause referred to was given. The attorney who drew it testified that the clause was an agreement on her part to pay “ the claims or bills of William B. Musgrave as a part of the consideration of the transferred property.”
    The plaintiff subsequently took an assignment of the debt due from William B. Musgrave to the G. H. Hammond Company, and brought this action to recover from defendant the amount thereof, basing his claim upon her promise made, at the time of the sale, to pay the same. A judgment for the amount was entered in the court below, and from such judgment this appeal is taken.
    
      GlarJc L. Jordan, for the appellant.
    
      Horton D. Wright, for the respondent.
   Parker, P. J.:

The plaintiff does not claim that the defendant ever made any promise to him, or to the G. H. Hammond Company, his assignor, to pay the debt in question, but he seeks to recover upon the theory that the promise to pay, made by the defendant at the time she bid off the property, inured to his benefit and created a cause of action in Ms favor. Bruce, who sold the property, was the defendant’s agent, acting for her. In legal effect the sale operated precisely as if it had been made by herself, and the bill of sale was of no effect whatever to pass any title in the property to her. At most it ope rated as a memorandum of sale, to show what was purchased and what was bid. She took her title through the mortgage, and the bill of sale gave her nothing. Bruce was subject to her orders entirely, and a promise made to him was, in legal effect, no different from a mere promise made to herself. Bruce was no more the agent of the mortgagor in selling the property than she herself -would have been had she sold it. Either was obliged to sell it fairly and in the manner required bylaw. Beyond that neither owed any duty to the mortgagor, and very clearly neither -was his agent to promise or direct on his behalf how his equity of redemption in the property should be applied to the ¡payment of his debts. A promise, therefore, made at the time of the sale to Bruce, or to herself, that she would pay the mortgagor’s debt to the G. H. Hammond Company, was not a promise such as would give a right of action to that company, or to its assignee.

The rule laid down in Lawrence v. Fox (20 N. Y. 268), invoked by the plaintiff’s counsel to sustain this claim, is applicable only where the person to whom the promise is made is himself in privity with and under some obligation or duty to the one to whom payment is to be made and himself intends to secure to such party the benefit of the promise. ( Vrooman v. Turner, 69 N. Y. 280, 284.)

In the case at bar Bruce owed nothing whatever to the G. H. Hammond Company, and, if we consider the promise as one made to him, it clearly is not within the rule. And we cannot consider it made to Musgrave, the mortgagor, through Bruce as his agent, for very clearly, as stated above, Bruce had no authority to ask or receive for him any promise whatever upon that subject. The whole arrangement is made by Bruce, without any authority whatever from Musgrave, who does not appear to have had any knowledge of the arrangement nor any opportunity of expressing himself concerning it. It is to be noted that the question presented is not what effect the arrangement made will have as between Musgrave and the defendant, when she is called upon by him to account for the mortgaged property, but whether the promise so made gave a right of action against her directly to the G. H. Hammond Company. It is very apparent that the rule invoked by the plaintiff’s counsel does not sustain the claim made.

"Without discussing any of the other alleged errors or reasons given why the plaintiff is not entitled to recover in this action, for the reasons above given, I conclude that the judgment should he reversed and a new trial granted.

All concurred.

Judgment reversed, referee discharged and a new trial granted, costs to abide the event.  