
    Charles H. Winfield, Plaintiff and Respondent, v. Samuel B. Potter, Defendant and Appellant.
    1. Where the parties to a sale agree that the vendee shall, as a part of the consideration moving from him, pay a debt due from the vendor to a third person, a promise of payment made by the vendee to such third person, pursuant to the agreement, is not within the statute of frauds.
    2. Thus where persons holding a contract for the supply of certain merchandise to the government, which was to be subject to inspection, delivered a part of the goods, and pledged the government receipts therefor, to the plaintiff as security for a debt due to him, and subsequently assigned the contract to the defendant, in consideration, among other things, of his assuming to pay all their debts, and the defendant, in order to obtain the receipts pledged, so that he might effect a settlement with the government, gave to the plaintiff a written promise that he would pay the amount of the debt whenever he received certificates from the government for the payment of so much upon the contract, in consideration that the plaintiff should aid in procuring the inspection and acceptance of the goods, without charge, and the plaintiff at the same time gave to the defendant a written promise to assist him accordingly without charge;
    
      Held, that the promise to pay the plaintiff was not void under the statute of frauds. 1. Taken together these two instruments expressed a consideration. 2. Such a contract is not to be deemed an undertaking to pay the debt of another within the statute. It is to be regarded as assuming to pay a lien upon being put in possession of the indicia of title.
    (Before Moncrief and Monell, J. J.)
    Heard, January 16, 1863;
    decided, January 31, 1863.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial.
    Frederick F. Betts & Co., on the 24th of August, 1861, entered into a contract with the United States for the manufacture and delivery to the government of five thousand sets of military equipments. They proceeded under this order or contract, and had made and delivered a large part of the goods, when, on the 7th of October, 1861, they sold out to Potter, the defendant in this action, all their assets, including goods manufactured, and all their right, title, and interest under the contract, in consideration of the sum of $8,000, (which Potter had previously loaned them,) and an agreement by Potter that he would pay the debts of Frederick F. Betts & Co.
    At this time the firm of Frederick F. Betts & Go. were indebted to one H. B. Hart, for money which Hart had previously loaned them to carry on this business, in the sum of $1,125, for which Hart held the firm note; and, as collateral security for its payment, he also held at that time quartermasters’ receipts for fifty cases of goods which Betts and Co. had delivered to the government under their contract.
    On the 10th of October, 1861, three days after Potter bought this contract and property of Betts & Co., and while the contract was in full force, he applied to Hart to get these rebeipts, which Hart held as collateral security for his demand. Hart agreed to surrender the receipts, upon Potter’s giving him a Avriting to pay the debt due from Betts & Co. to him, and Potter gave him the following writing:
    “ I, Samuel B. Potter, agree, that whenever I receive a “ certificate or certificates from the Government of the “ United States, or its officers, under or in pursuance of a “ contract between Frederick F. Betts & Co. and the Gov- “ eminent of the United States, for the making and “ delivery of five thousand sets of military equipments, for “ the whole or any portion of the sum agreed to be paid by “said Government, or the whole or any portion of the “ property so furnished, then I will deliver to said H. B. “Hart, Esq., eleven hundred and twenty-five dollars, pro- “ vided I receive certificates to that amount ,* which is in “ consideration that said Hart shall aid me in procuring “ the inspection and acceptance of said military equip- “ ments Avithout charge, less disbursements.
    “ Mew York, Oct. 10th, 1861.
    “ §1,125. SAMUEL B. POTTER.”
    Hart, at the same time, and as a part of the same agreement and transaction, made and delivered to Potter, the defendant, the following writing:
    “ Mew York, October 10th, 1861.
    “ I hereby agree to aid and assist Mr. S. B. Potter, the “ representative of F. F. Betts, to the best of my ability “ in getting his goods examined, as per contract with the “ United States Government, for (5,000) five thousand sets “ military equipments, made by said U. S. to Messrs. F “ F. Betts & Co., without charge.
    “ H. B. HART.”
    Subsequent to this transaction, Potter surrendered to the government the original order or contract, which he purchased, and had it canceled, and took an order directly to himself, for the same articles, which substituted order or contract did not differ from the one canceled, in any respect, except running to Potter instead of Betts & Co. By its terms, the government agreed to take the goods already manufactured and delivered under the first order of Betts & Co., in fulfillment of “ the order."
    
    It appeared that after Potter obtained this new order, he expended between $3,000 and $4,000 to complete the goods already nearly finished under the first order, and in Hovember, 1861, he received from the government a certificate for $17,412.50, which certificate included all the goods delivered to the government by Frederick F. Betts & Co., on their order before they sold out to Potter, and also the fifty cases which Hart gave Potter the receipts for.
    Hart subsequently assigned the contract of Potter, upon which the suit was brought, to Frederick B. Betts, who in turn assigned it to the plaintiff in this action.
    This action was tried on the 28th of October, 1862, before Chief Justice Boswobth and a Jury.
    In the course of the direct examination of Hart as a witness on the part of the plaintiff, when he was testifying in relation to his having exerted himself to aid. in getting the goods inspected, the defendant’s counsel objected to the testimony, and moved to dismiss the complaint, on the ground that no consideration was stated in the agreement. The motion was denied and he excepted. Various exceptions were taken to the evidence, which are not discussed in the opinion of the Court. One ground of the defense was the allegation by the defendant that the plaintiff was not the true owner of the agreement. Upon this point the Chief Justice, in his charge, after adverting to the testimony, said:
    “ Undoubtedly, on the evidence for the plaintiff, as it stands, this was a gift by Mr. Betts to Mr. Winfield. We have a little evidence as to the motive — but, assuming it to be a gift, it is as substantially Mr. Winfield’s, and his right to recover it is as strong, as if he had paid $1,125 in cash.”
    To the first sentence of that statement, the defendant’s counsel excepted.
    The plaintiff recovered a verdict for $1,195.83, and after a motion for a new trial had been made and denied, and judgment entered, the defendant appealed, both from the judgment and from the order denying a new trial.
    
      D. M. Porter, for defendant, appellant:
    Reviewed the various exceptions, and also insisted that the Court erred in not dismissing the complaint on the defendant’s motion therefor, on the ground that no consideration is named in the agreement, because if it was to answer for the debt of another, the consideration must be expressed in the writing. (3 R. S., 5th ed., page 221.)
    There was no consideration expressed in the agreement, because Hart agrees that no charge shall be made for his aid. If it was an original promise to pay Hart, there was jio consideration to support it, because he agreed to perform it without any charge, and gave a stipulation to that effect. By the express words of the statute, the Court is prohibited from finding a consideration outside of the writing itself.
    
      Ira P. Warren for plaintiff, respondent.
   By the Court—Moscrief, J.

There was no error in denying the motion to dismiss the complaint. The application was made during the progress of the direct examination of a witness, (the assignee of the plaintiff,) interrupting the orderly administration of justice on the trial of a cause; it appears in the double character of an objection to evidence which had been given tending to show performance of the agreement on the part of the assignee of the plaintiff, (Hart,) and of a motion to dismiss the complaint on the ground that no consideration is named in the agreement. The agreement was not void under the statute; taken together, the two instruments constituting the contract, one signed by the defendant and the other by Mr. Hart, a consideration is expressed; besides the agreement cannot, in a just sense, be treated as an undertaking to pay the debt of another; it partakes more of the character of an engagement by the vendee of personal property, upon becoming the possessor of the instrument claimed to be indicia of title, assuming and agreeing to pay to the extent of the alleged lien.

The expression of opinion by the learned Chief Justice, in his charge to the Jury, is well sustained by the testimony and was not error; the question was submitted to the Jury. (Coyles v. Hurtin, 10 Johns., 85-88; Bulkeley v. Keteltas, 4 Sandf., 450-454.) The case was fully and fairly submitted to the Jury, who rendered a verdict for the plaintiff, doing, as I think, justice, between the parties to the action. The other objections and exceptions are embraced by the views expressed with reference to the first exceptions, or so plainly untenable as not to require discussion.

The judgment and the order denying the motion for a new trial must he affirmed.  