Fitzgerald Spear Co. v. Kelly

Supreme Court of New Jersey

Fitzgerald Spear Co. v. Kelly

83 A. 491, 81 N.J.L. 6, 52 Vroom 6, 1911 N.J. Sup. Ct. LEXIS 138

CourtSupreme Court of New Jersey

DecidedMarch 23, 1911

StatusPublished

Cited by1 cases

This text of 83 A. 491 (Fitzgerald Spear Co. v. Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzgerald Spear Co. v. Kelly, 83 A. 491, 81 N.J.L. 6, 52 Vroom 6, 1911 N.J. Sup. Ct. LEXIS 138 (N.J. 1911).

Pincite

Opinion

The opinion of the court was delivered by

Gummere, Chief Justice.

The defendant, Ivelly, was the rector of St. Rose’s Roman Catholic Church at Oxford Furnace. A written agreement was made between the church and one Lennon for the building of a rectory for the use of the church corporation as a home for its rector. . Lennon procured from the plaintiff a considerable quantity of lumber to be used in the erection of the building. Failing to pay for the same, the plaintiff refused to supply any more lumber to him until it had received'something on account. Thereupon, according to the testimony offered on behalf of the plaintiff, the defendant, Kelly, promised to it to pay the entire lumber bill if it would furnish and deliver to the building the materials required for the completion of Lennon’s contract. The plaintiff accepted this offer and delivered the material. The plaintiff had a verdict and judgment.

[7]*7The principal question presented by this writ of error is whether the case is within the statute of frauds; that is, whether the promise sued on was a promise by Kelly to pay the debt of Lennon. If it was, admittedly the defendant cannot be held, for the promise was not in writing. In the leading case of Hetfield v. Dow, 3 Dutcher 440, it is said: “If A purchase goods to be delivered to B, or promises to pay for goods that may be purchased and received by B, it is an original contract on the part of A, and the promise need not be in writing; it is an original engagement to pay his own debt, and. not tire debt of B.” In the present case, the recovery was had for materials delivered by the plaintiff to the rectory building after the promise made by Kelly. To the extent that the promise was to pay for these materials, it was an original engagement by Kelly to pay his own debt, and not the debt of Lennon. The recovery against him for this surn was therefore properly permitted.

The contention on the part of counsel for plaintiff in error that in making this promise Kelly was a mere agent of the church is, we think, without force. He made no attempt to hind the church. The obligation which ho assumed was a personal one. The judgment under review will be affirmed.

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

The opinion of the court was delivered by

Gummere, Chief Justice.

The defendant, Ivelly, was the rector of St. Rose’s Roman Catholic Church at Oxford Furnace. A written agreement was made between the church and one Lennon for the building of a rectory for the use of the church corporation as a home for its rector. . Lennon procured from the plaintiff a considerable quantity of lumber to be used in the erection of the building. Failing to pay for the same, the plaintiff refused to supply any more lumber to him until it had received'something on account. Thereupon, according to the testimony offered on behalf of the plaintiff, the defendant, Kelly, promised to it to pay the entire lumber bill if it would furnish and deliver to the building the materials required for the completion of Lennon’s contract. The plaintiff accepted this offer and delivered the material. The plaintiff had a verdict and judgment.

[7]*7The principal question presented by this writ of error is whether the case is within the statute of frauds; that is, whether the promise sued on was a promise by Kelly to pay the debt of Lennon. If it was, admittedly the defendant cannot be held, for the promise was not in writing. In the leading case of Hetfield v. Dow, 3 Dutcher 440, it is said: “If A purchase goods to be delivered to B, or promises to pay for goods that may be purchased and received by B, it is an original contract on the part of A, and the promise need not be in writing; it is an original engagement to pay his own debt, and. not tire debt of B.” In the present case, the recovery was had for materials delivered by the plaintiff to the rectory building after the promise made by Kelly. To the extent that the promise was to pay for these materials, it was an original engagement by Kelly to pay his own debt, and not the debt of Lennon. The recovery against him for this surn was therefore properly permitted.

The contention on the part of counsel for plaintiff in error that in making this promise Kelly was a mere agent of the church is, we think, without force. He made no attempt to hind the church. The obligation which ho assumed was a personal one. The judgment under review will be affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

83 A. 491, 81 N.J.L. 6, 52 Vroom 6, 1911 N.J. Sup. Ct. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-spear-co-v-kelly-nj-1911.

Opinion

Related

Cite This Page — Counsel Stack