Bausinger v. Guenthner

66 Barb. 186, 1869 N.Y. App. Div. LEXIS 152

• Court: New York Supreme Court
• Decided: October 5, 1869
• Status: Published

Opinion

By the Court,

Mullin, J.

I am unable to find in the evidence of the plaintiffs, any proof whatever of a consideration for the alleged promise of the defendant.

The title to the goods had passed from the plaintiff to John Guenthner, on the sale to him, and nothing whatever is shown which could render that sale void, or entitle the plaintiff to recover the goods. John became insolvent subsequent to the sale; at least there is no proof of insolvency before, and it was not known to the plaintiffs until some three weeks after the purchase.

It was quite absurd to talk of bringing an action to recover the goods, under such circumstances. Unless, therefore, the omission to bring an unfounded action at the request of another can furnish a consideration, there is none in this case; and I apprehend that it remains to be decided that abandoning the bringing of an action shown to be groundless is a sufficient consideration for the undertaking of the person making the request to pay the debt of another person.

The goods were never transferred by John to the defendant, and hence the latter never had, nor did he claim to have, any title to them. They were secreted by him to keep them from his brother’s creditors, and not for his own use or benefit.

He did not purchase them of the plaintiffs, as they had no interest in them that was the subject of sale, and he got nothing therefor which would form a consideration for his promise to pay for them.

But if I am wrong in supposing there is no consideration, the defendant is nevertheless not liable, as his promise to pay for the goods is not in writing. It was decided in Mallory v. Gillett, (21 N. Y. 412,) that the relinquishment of a lien on property covered by another was not such a consideration as took the promise of a third person, at whose request the lien was relinquished, out of the statute of frauds.

In that case it was held that the new consideration must move from the one having the lien to the promissor. If the original obligation of - the original debtor remains in force, and the new promise is collateral to it, the latter must be in writing, although the relinquishment of the lien might be a valid consideration for a promise not within the statute of frauds.

The original debt against John Gnenthner remained in full force. The goods could not be transferred to the défendant so as to give him title thereto; and hence there was no valid consideration to support the alleged promise of the defendant.

[Onondaga General Term, October 5, 1869.

The judgment should be reversed, and a new trial granted, costs to abide the event.

Mokgan, J., dissented.

Bacon, Poster, Morgan and Mullin, Justices.]