Ellwood v. Monk

5 Wend. 235

• Court: New York Supreme Court
• Decided: July 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

The third plea is clearly bad, because it sets up as a defence a fact which the plaintiff must have proved if the defendant had pleaded the general issue; but an objection to a special plea, because it amounts to the general issue and no more, cannot prevail unless it be specially assigned as cause of demurrer. The plaintiff, not having the right to insist upon this objection, the plea is good, unless the contract set forth in the declaration is a valid contract without being in writing. If the plea does not answer all the counts where it professes to do so, the demurrer to it must be adjudged to be well taken. I think some of the counts, particularly the second, set forth a contract which is obligatory on the defendant, without being reduced to writing. The promise in this count is to pay the debt of a third person, but yet it is not within the statute of frauds, being made upon a new and distinct consideration. Most if not all of the cases in relation to this point which have arisen under the statute of frauds, as well in England as here, were fully considered by the chief justice in Farley v. Cleveland, 4 Cow-en, 432, and the principle above laid down firmly established. It is expressly averred in this count of the declaration, that in. consideration of the property sold and delivered to him, the defendant promised to pay certain specified debts of Johannes Monk, of which the debt due to the plaintiff was one. If the promise had been to pay the demand due to the plaintiff alone, in consideration of property assigned and delivered to the defendant by the debtor, I think no doubt as to the validity of the promise could have been raised ; and I do not perceive that the promise is less available to the plaintiff because at the same time the defendant made a promise to pay other debts of Johannes Monk.

We give no opinion as to the validity of the verbal promise to pay all the debts of Johannes Monk, without any designation thereof, in consideration of the transfer of the property to the defendant.

Judgment for plaintiff.