The opinion of the court was delivered by
Scudder, J.
The facts above stated on the part of the plaintiff were found by the jury in his favor. There can hardly be a doubt- upon the testimony that he gave up his engagement with Whitehead Brothers, with the understanding that he was to have an annual salary of $2000, from January 1st, 1870, and house rent. The defendants deny the agreement, but Fields admits that he told him they could do as well by him as any one else would, if he remained with them. The jury have rightly construed this as a promise that Fields & King would do as well for him- as Whitehead Brothers had agreed. If it were otherwise, it was a deception attempted upon him. I think the verdict is sustained by the evidence. The plaintiff was entitled to his $2000 salary and a house for his family to live in, at a reasonable rent, if the jury- believed his testimony, and his claim has strong merits.
- The defehdants object further, that the plaintiff has no legal claim against them for the salary and house rent from February 1st, 1870, to October 1st, 1871, while he was in the employ of Fields & King, and Fields alone; that they did not assume this, and the plaintiff has- no right of action, against them for services rendered to Fields & King, and Fields during that time.
The defendants, when the lease and property were surrendered to them by Fields October-1st, 1871, assumed “all liabilities of Fields & King, and Fields, receiving as a consideration therefor at that time, besides the surrender of the lease, all the materials manufactured and unmanufactured, with all the merchandise and accounts.” The plaintiff had knowledge and gave assent at the time to this arrangement,. [145]*145for lie was present and acted upon it as one of the directors of the company. He assented to the transfer of this liability from Fields & King to the company, and took them as his debtors. The defendants however contend that these liabilities which they assumed to pay must be confined to such as were admitted, and such as appear on the books of Fields & King; and that the statement of liabilities made out at that time, or soon after, does not show this claim of Joslin as unsettled. It is a sufficient answer to say that this was not the contract. The defendants, in their accepted proposition, assumed all liabilities without any specification or limitation.
This includes any and all arrearages of wages due workmen for services, and any unpaid salary to the foreman, although they might be in dispute at the time. The term used in the proposal is not debts, accounts, or any admitted and ascertained sum, but “ all liabilities.” This is broad enough to cover a disputed claim for wages or salary to the foreman of the factory. Liability is defined to be a state of being bound or obliged in law or justice. This is alike the legal and popular definition of the word, and the jury have so understood and rendered it. The plaintiff assented and gave credit upon this construction, and he has the right now to insist upon it as the true interpretation of the contract.
But if it bo true that the defendants assumed the payment of all the liabilities of Fields & King, and if this unsettled balance claimed by the plaintiff was included in this assumption, it is further insisted that the plaintiff cannot maintain the action in his own name against them, as there is no privity of contract, and no consideration was passed between them. All the positions taken by counsel upon this point in the case and many of the authorities cited, are fully examined and explained in Barker v. Bucklin, 2 Denio 45. It is therein held that an action may be maintained on a promise made by the defendant to a third person for the benefit of the plaintiff, without any consideration moving from the plaintiff; and that where B being indebted to the plaintiff sold property to the defendant, who agreed to pay the price [146]*146of it to the plaintiff on account of his demand against B, the plaintiff might maintain an action against the defendant on such promise. 1 Pars. Cont. 389-90; 2 Am. Ld. Cas. 185, and notes; Blunt v. Boyd, 3 Barb. 209; Feltmakers v. Davis, 1 B. & P. 101, note (c).
It is also stated in some of the authorities above cited, as a result of a review of the cases, that it is now well settled, as a general rule, that in cases of simple contracts, if one person makes a promise to another for the benefit of a third, the-third may maintain an action on it though the consideration does not move from him. See also Farley v. Cleveland, 4 Cow. 432; S. C., 9 Cow. 639.
The rule is otherwise in case of sealed contracts. Millard v. Baldwin, 3 Gray 484; Johnson v. Foster, 12 Metc. 167.
The present case avoids the question which is sometimes raised, where the assumption is by parol, whether as a‘ promise to pay the debt of another^ it is not within the statute of frauds, because here the proposal and resolution of acceptance are in writing, and the consideration is fully expressed. Here also there is a new and distinct consideration for the promise of the defendants moving to them from Fields in the surrender of the lease, and the transfer of all the property and assets of said firm and of Fields. Hetfield v. Dow, 3 Dutcher 440.
One other reason for setting aside the verdict and granting, a new trial remains to be considered.
The declaration contained only the usual common counts and short statements of the amounts claimed, annexed as a bill of particulars. After the testimony had closed, the plaintiff’s counsel moved to amend his declaration by adding account for moneys due to the plaintiff for services rendered to Fields & King and to Fields, the payment of which was' assumed by the defendants. The amendment was allowed by the court under our practice act. Nix. Dig. 739, § 166.
If all the facts that have been shown on this rule were in the case submitted to the jury, their verdict would still be right; and if the case were before us to set aside the verdict upon those facts proven, this court would not disturb it because it was against the weight of evidence, or unjust. This testimony is mainly cumulative, and the plaintiff’s ease, from the circumstances known to the defendants and involved in the issue, could have been anticipated readily. Both surprise and substantial merits should be shown to warrant the court in setting aside the action of the court below, and where justice has been done by a verdict, a new trial should not be granted. Steelman v. Steelman, 1 Harr. 66; Princeton Turnpike v. Gulick, 1 Harr. 167; Hilliard on New Trials 46—48, 398; 2 Archb. Pr. 252.
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The opinion of the court was delivered by
Scudder, J.
The facts above stated on the part of the plaintiff were found by the jury in his favor. There can hardly be a doubt- upon the testimony that he gave up his engagement with Whitehead Brothers, with the understanding that he was to have an annual salary of $2000, from January 1st, 1870, and house rent. The defendants deny the agreement, but Fields admits that he told him they could do as well by him as any one else would, if he remained with them. The jury have rightly construed this as a promise that Fields & King would do as well for him- as Whitehead Brothers had agreed. If it were otherwise, it was a deception attempted upon him. I think the verdict is sustained by the evidence. The plaintiff was entitled to his $2000 salary and a house for his family to live in, at a reasonable rent, if the jury- believed his testimony, and his claim has strong merits.
- The defehdants object further, that the plaintiff has no legal claim against them for the salary and house rent from February 1st, 1870, to October 1st, 1871, while he was in the employ of Fields & King, and Fields alone; that they did not assume this, and the plaintiff has- no right of action, against them for services rendered to Fields & King, and Fields during that time.
The defendants, when the lease and property were surrendered to them by Fields October-1st, 1871, assumed “all liabilities of Fields & King, and Fields, receiving as a consideration therefor at that time, besides the surrender of the lease, all the materials manufactured and unmanufactured, with all the merchandise and accounts.” The plaintiff had knowledge and gave assent at the time to this arrangement,. [145]*145for lie was present and acted upon it as one of the directors of the company. He assented to the transfer of this liability from Fields & King to the company, and took them as his debtors. The defendants however contend that these liabilities which they assumed to pay must be confined to such as were admitted, and such as appear on the books of Fields & King; and that the statement of liabilities made out at that time, or soon after, does not show this claim of Joslin as unsettled. It is a sufficient answer to say that this was not the contract. The defendants, in their accepted proposition, assumed all liabilities without any specification or limitation.
This includes any and all arrearages of wages due workmen for services, and any unpaid salary to the foreman, although they might be in dispute at the time. The term used in the proposal is not debts, accounts, or any admitted and ascertained sum, but “ all liabilities.” This is broad enough to cover a disputed claim for wages or salary to the foreman of the factory. Liability is defined to be a state of being bound or obliged in law or justice. This is alike the legal and popular definition of the word, and the jury have so understood and rendered it. The plaintiff assented and gave credit upon this construction, and he has the right now to insist upon it as the true interpretation of the contract.
But if it bo true that the defendants assumed the payment of all the liabilities of Fields & King, and if this unsettled balance claimed by the plaintiff was included in this assumption, it is further insisted that the plaintiff cannot maintain the action in his own name against them, as there is no privity of contract, and no consideration was passed between them. All the positions taken by counsel upon this point in the case and many of the authorities cited, are fully examined and explained in Barker v. Bucklin, 2 Denio 45. It is therein held that an action may be maintained on a promise made by the defendant to a third person for the benefit of the plaintiff, without any consideration moving from the plaintiff; and that where B being indebted to the plaintiff sold property to the defendant, who agreed to pay the price [146]*146of it to the plaintiff on account of his demand against B, the plaintiff might maintain an action against the defendant on such promise. 1 Pars. Cont. 389-90; 2 Am. Ld. Cas. 185, and notes; Blunt v. Boyd, 3 Barb. 209; Feltmakers v. Davis, 1 B. & P. 101, note (c).
It is also stated in some of the authorities above cited, as a result of a review of the cases, that it is now well settled, as a general rule, that in cases of simple contracts, if one person makes a promise to another for the benefit of a third, the-third may maintain an action on it though the consideration does not move from him. See also Farley v. Cleveland, 4 Cow. 432; S. C., 9 Cow. 639.
The rule is otherwise in case of sealed contracts. Millard v. Baldwin, 3 Gray 484; Johnson v. Foster, 12 Metc. 167.
The present case avoids the question which is sometimes raised, where the assumption is by parol, whether as a‘ promise to pay the debt of another^ it is not within the statute of frauds, because here the proposal and resolution of acceptance are in writing, and the consideration is fully expressed. Here also there is a new and distinct consideration for the promise of the defendants moving to them from Fields in the surrender of the lease, and the transfer of all the property and assets of said firm and of Fields. Hetfield v. Dow, 3 Dutcher 440.
One other reason for setting aside the verdict and granting, a new trial remains to be considered.
The declaration contained only the usual common counts and short statements of the amounts claimed, annexed as a bill of particulars. After the testimony had closed, the plaintiff’s counsel moved to amend his declaration by adding account for moneys due to the plaintiff for services rendered to Fields & King and to Fields, the payment of which was' assumed by the defendants. The amendment was allowed by the court under our practice act. Nix. Dig. 739, § 166.
If all the facts that have been shown on this rule were in the case submitted to the jury, their verdict would still be right; and if the case were before us to set aside the verdict upon those facts proven, this court would not disturb it because it was against the weight of evidence, or unjust. This testimony is mainly cumulative, and the plaintiff’s ease, from the circumstances known to the defendants and involved in the issue, could have been anticipated readily. Both surprise and substantial merits should be shown to warrant the court in setting aside the action of the court below, and where justice has been done by a verdict, a new trial should not be granted. Steelman v. Steelman, 1 Harr. 66; Princeton Turnpike v. Gulick, 1 Harr. 167; Hilliard on New Trials 46—48, 398; 2 Archb. Pr. 252.
I am also satisfied that the amendment permitted was within the power of amendment, as heretofore determined in this court, and the subject matter of the amendment was within the issue upon the record before such amendment was made. Hoboken v. Gear, 3 Dutcher 265; Price v. N. J. Railroad Co., 2 Vroom 229.
The attempt of these supplemental affidavits was merely to show that the assumption of liabilities was confined to such as appear on the books of the company, in opposition to the written proposal made by Fields to pay “all liabilities.” The plaintiff and the defendants knew and assented to the arrangement at the time it was made, and upon all the facts shown, I think the plaintiff was entitled to a liberal, and not a narrow, construction of the term used.
The rule is discharged, and the verdict sustained.
Cited in Farrier v. Schroeder, 11 Vr. 601; Redstrake v. Cumberland Ins. Co., 15 Vr. 294; Pruden v. Williams, 11 C. E. Gr. 210; Crowell v. Currier, 12 C. E. Or. 152; Crowell v. Hospital of St. Barnabas, 12 C. E. Gr. 650; Price v. Trusdell, 1 Stew. 200; Cubberly v. Cubberly, 6 Stew. Eq. 82.
Rev., p. 869, § 138.