Knox v. Nutt

1 Daly 213

• Court: New York Court of Common Pleas
• Decided: May 15, 1862
• Status: Published

Opinion

By the Court.

Brady, J.

The plaintiff is a hatter, and employed the defendant as clerk. The defendant told the plaintiff that if any of his personal friends bought hats on credit he would be responsible—that he would pay if they did not. The defendant sold hats to his friends, which were charged to them, and they were never discharged from their obligations. The Justice held the engagement or promise of the defendant collateral, and within the statute of frauds. The decision was correct. The persons to whom it is alleged the defendant sold hats were primarily liable to the 'defendant. He charged the hats to them. The whole credit was not given to the defendant. The whole responsibility did not rest upon him, and the promise was therefore collateral and void. Leonard v. Vredenbergh, 8 J. R. 23, and Cases collected in a noce to that case; Brown v. Bradshaw, 1 Duer,. 199 ; Car-ville v. Crano, 5 Hill 483 ; Newcomb v. Clark, 1 Denio 226; Brady v. Sackuder, Sandf. 514; Pennel v. Pentz, 6 E. D. Smith 639; Dixon v. Frazel, 1 E. D. Smith 32 ; Brewster v. Silence, 4 Selden 207.

In Newcomb v. Clark, supra, the defendant signed a paper in these words : “ Mr. Henry Peters—I hereby agree to pay to you the rent of the part of the house hired of you by Hr. John "Ward, in case he fails.” The promise was held void, though in writing, the consideration not being expressed. The case in hand cannot he distinguished in principle from that case.

The judgment should be affirmed.