
    JESSE F. TALMADGE, Plaintiff and Respondent, v. PAUL N. SPOFFORD, Defendant and Appellant.
    Before Sedgwick and Speir, JJ.
    
      Decided, November 20, 1876.
    contbact.
    
      When void for want of consideration, and, under statute offrauds, when not in writing.
    
    In the case at bar, the plaintiff entered into a contract with a third party to do certain work at a stipulated price. After-wards (upon a view of the evidence most favorable to plaintiff) the defendant directed the plaintiff to go on with the contracted work, agreeing that, on its completion, he would take the plaintiff’s claim against the other party to the contract, and pay one thousand eight hundred dollars for it. This direction and agreement was oral and not in writing.
    
      Eeld, that this was not a valid contract.- It was without consideration, and was collateral to the contract with the third party (Larsen v. Wyman, 14 Wend. 246).
    Upon a consideration of the case that the transaction was one for the sale of the contract to the defendant,—Eeld, that the defendant could only be held by a writing signed by him, agreeably to the. third section of the Statute of Frauds.
    
      An appeal from judgment, and from order denying motion to set aside verdict, and for a new trial upon the judge’s minutes.
    The complaint averred that the “plaintiff entered into a contract with the above named defendant as follows, to wit: That this plaintiff should enter into a contract with the Steam Derrick Company, to raise their sunken derrick, then sunk at the foot of Bethune street, and place her upon the Jersey flats, for the sum of two thousand dollars ; that this plaintiff should perform or cause to be performed all the work and labor necessary in raising said derrick, and placing her on said flats; that the defendant agreed that at the conclusion of the work of raising the said derrick, and placing her on said flats, that he would pay to this plaintiff, the sum of eighteen hundred dollars in cash, and take the said contract.” The complaint further averred, performance on the part of plaintiff, and an offer to assign to the defendant said contract, and a demand of the eighteen hundred dollars, and a refusal on the part of defendant.
    ■ The answer, with other defenses, made a general denial."
    On the trial the plaintiff ’ s counsel admitted that there was no written contract between the parties to this action.
    The plaintiff as a witness gave testimony as to the arrangement between the parties, which was vague in character. In one part of his testimony he swore that defendant directed him to go on and raise the derrick, and that he, the defendant, would pay eighteen hundred dollars. It was uncertain whether the witness did not intend that testimony as his construction of certain writings signed by him, to which he testified, viz : he wrote and delivered to the defendant, who was president of this Derrick Company, the following, on October 7,1869; “I shall charge two thousand dollars, if I have only the responsibility of the Steam Derrick Company; but if, oh completion of the work, you will see that the cash is paid to me, I-will assign you all my liens on the property of the Derrick Company, and, at your expense, do all I can to obtain security for you, and pay you two hundred dollars, or at that rate, for a portion of said guarantee and settlement of bill.” Likewise, he delivered to the defendant, as president, the following:
    “The Steam Derrick Company,
    “Hew York:
    “ Sir, I will raise the boom derrick, now sunk at the foot of Hammond street, or near there, and place her on the Jersey flats, for the sum of two thousand dollars.
    “ J. F. Talmadge.”
    On the same date, the witness received an acceptance in writing, by the Derrick Company, of his offer.
    The plaintiff testified that the defendant said to him to go on and do the work, and that he would pay eighteen hundred dollars, between the 7th and 9th of October, after the contract with the Derrick Company was made.
    In due time the defendant objected to the plaintiff making any claim upon a contract, not set up in the complaint; and at the end of "the case, moved for dismissal of complaint, and for a direction to the jury in his favor, on the. ground that the evidence did not establish the contract set up in the complaint, and that, on any construction of the testimony, the contract claimed to be established, was void by the statute of frauds, as a verbal contract of purchase of a chose in action of greater value than fifty dollars. The court refused the motion, and defendant excepted.
    
      Evarts, Southmayd & Choate, attorneys for appellant ; Charles Tweed, of counsel.
    
      Oscar Frisbie, for respondent.
   By the Court.—Sedgwick, J.

The plaintiff was bound to prove the contract set up in the complaint. Whatever difficulties might attend an application of the statute of frauds to a case where a defendant had requested a plaintiff to enter into a contract with a third person, and to perform services under it, promising to piay therefor, they do" not exist in the case made by the testimony here. The weight of the testimony was, and perhaps no. other construction was possible, that the defendant entered into no arrangement or negotiation, on his own behalf, until after the plaintiff had made the contract with the company. Thereafter only, on a view of the testimony most favorable to plaintiff, did the defendant direct the plaintiff to go on with the work, agreeing that at the end of it he would take plaintiff’s claim against the company, and pay eighteen hundred dollars, or did the plaintiff give to the defendant the option of taking the contract and the claim upon it, after performance, for eighteen hundred dollars.

Under such circumstances, the direction to proceed with the work, and the promise to pay, did not establish a valid contract. It was without consideration, and was collateral to the contract with the company (Larsen v. Wyman, 14 Wend. 246).

Looking at the transaction as one for the sale of the contract to the defendant, the defendant could only be held by a writing signed by him, under the third section of the statute of frauds, that enacts that a contract for the sale of any chose in action, for the price of fifty dollars or more, is void, unless a note of such contract is -signed by the party to be bound by it. I am therefore of opinion, that the defendant’s motion to dismiss should have been granted with costs.

Judgment reversed, with costs.

Speir, J., concurred.  