Eighmie v. Townsend

New York Supreme Court

Eighmie v. Townsend

15 N.Y.S. 464, 39 N.Y. St. Rep. 880, 60 Hun 586, 1891 N.Y. Misc. LEXIS 3280

CourtNew York Supreme Court

DecidedJuly 2, 1891

StatusPublished

Cited by1 cases

This text of 15 N.Y.S. 464 (Eighmie v. Townsend) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eighmie v. Townsend, 15 N.Y.S. 464, 39 N.Y. St. Rep. 880, 60 Hun 586, 1891 N.Y. Misc. LEXIS 3280 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Pratt, J.

It is a well-recognized rule that a promise to pay the pre-existing debt of a third person to the promisee is not within the statute of frauds if the substantial effect of its fulfillment will he to discharge the debt out of a fund furnished to the promisor by the debtor in contemplation of which the [465]*465promise was made. The plaintiff testified that defendant promised to pay him the debt declared on; and the original debtor, Cunningham, also testified that, in consideration of the mortgage she gave to defendant, he made a promise to her to pay the debt; and the jury must have so found. The promise, in any view, having been made for the benefit of the plaintiff, he could, under the authority of Lawrence v. Fox, 20 N. Y. 268, maintain an action upon it, unless it was void under the statute of frauds. In this case it is settled by the verdict that, at the time.the. fund or property out of which the debt of Cunningham was to be paid, the defendant promised to pay the debt, and that subsequently the defendant promised to pay the said debt to the plaintiff, without any new consideration proceeding from the plaintiff to the defendant. The defendant himself testified as to the conveyance of the property, and that Cunningham wanted him to sell the property and pay thedebts. He also testified that he promised to pay the debt out of the proceeds of the property. The defendant, therefore, received the property charged with a trust for the benefit of plaintiff, and he could not relieve himself of that trust by turning over the property to Cunningham, or upon her order or consent. The property placed in the hands of the defendant was ample to pay all the obligations assumed by the defendant, so that there is no suggestion of failure of consideration between Cunningham and Townsend, the defendant; therefore the case of Dunning v. Leavitt, 85 N. Y. 30, and other cases cited by appellant, have no application. Judgment affirmed, with costs.

All concur. 0

Free access — add to your briefcase to read the full text and ask questions with AI

Pratt, J.

It is a well-recognized rule that a promise to pay the pre-existing debt of a third person to the promisee is not within the statute of frauds if the substantial effect of its fulfillment will he to discharge the debt out of a fund furnished to the promisor by the debtor in contemplation of which the [465]*465promise was made. The plaintiff testified that defendant promised to pay him the debt declared on; and the original debtor, Cunningham, also testified that, in consideration of the mortgage she gave to defendant, he made a promise to her to pay the debt; and the jury must have so found. The promise, in any view, having been made for the benefit of the plaintiff, he could, under the authority of Lawrence v. Fox, 20 N. Y. 268, maintain an action upon it, unless it was void under the statute of frauds. In this case it is settled by the verdict that, at the time.the. fund or property out of which the debt of Cunningham was to be paid, the defendant promised to pay the debt, and that subsequently the defendant promised to pay the said debt to the plaintiff, without any new consideration proceeding from the plaintiff to the defendant. The defendant himself testified as to the conveyance of the property, and that Cunningham wanted him to sell the property and pay thedebts. He also testified that he promised to pay the debt out of the proceeds of the property. The defendant, therefore, received the property charged with a trust for the benefit of plaintiff, and he could not relieve himself of that trust by turning over the property to Cunningham, or upon her order or consent. The property placed in the hands of the defendant was ample to pay all the obligations assumed by the defendant, so that there is no suggestion of failure of consideration between Cunningham and Townsend, the defendant; therefore the case of Dunning v. Leavitt, 85 N. Y. 30, and other cases cited by appellant, have no application. Judgment affirmed, with costs.

All concur. 0

Cite This Page — Counsel Stack

Bluebook (online)

15 N.Y.S. 464, 39 N.Y. St. Rep. 880, 60 Hun 586, 1891 N.Y. Misc. LEXIS 3280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eighmie-v-townsend-nysupct-1891.

Opinion

Related

Cite This Page — Counsel Stack