Stilwell v. Otis

7 Abb. Pr. 431, 2 Hilt. 148

• Court: New York Court of Common Pleas
• Decided: December 15, 1858
• Status: Published

Opinion

By the Court.

*—Hilton, J.

—The plaintiffs are practising lawyers, and bring this action to recover the value of their services in drawing an assignment, for the benefit of creditors, executed by James Hammill to John Hammill, and in which the defendants were preferred for the amount owing them by the assignor.

It appears, that after the assignment had been executed and delivered, the defendants proposed to the assignee to transfer all the assigned property to them, in payment of them preferred debt. This offer was made in the presence of the plaintiffs, who acted as counsel for the assignee; and it was objected to, on the ground that its acceptance would leave no property or funds in the assignee’s hands wherewith to pay the plaintiffs’ charges for drawing the assignment, &c.

The defendants then agreed to pay such charges, and the agreement was afterwards consummated by the assignee delivering to them all the assigned property.

Apart from the plaintiffs’ evidence on the trial, these facts appear from the testimony of the defendant P. M. Otis, who, after detailing the several interviews which led to this agreement, adds : “ I said we would pay the costs of drawing the papers. This was brought about by Hr. Swain. He asked who would pay the expenses. The assignee said he would have nothing to pay with. I supposed it was the best way to assume the thing, thinking it would only be $20 or $25. The bill of sa,le was executed, I think, the following day.”

And again: “ When Hr. Swain spoke of the payment of the expenses of the assignment, I did not ask him the amount of his bill. I supposed we would have to pay a reasonable bill.”

The jury, by their verdict, found that $50 was a reasonable charge for the services of the plaintiffs, and for that amount, with costs, judgment was rendered.

It is quite obvious that the- agreement of the defendants to pay this debt was not such as is required by the statute of frauds to be in writing. It was an original undertaking on their part, in consideration of the assignee transferring to them all the assigned property, that they would pay the plaintiffs’ charges for drawing the assignment.

It was a condition of the transfer that they should pay this debt; and the liability of the assignee for the same debt does not at all affect the character or extent of the defendants’ obligation. (Leonard a. Vredenburgh, 8 Johns., 29; Skelton a. Brewster, lb., 376; Mather a. Perry, 2 Denio, 162 ; Barker a. Bucklin, lb., 45; Del. & Hudson Canal Co. a. Westchester Co. Bank, 4 lb., 97; Mercien a. Andrus, 10 Wend., 461; Ell-wood a. Honk, 5 Ib., 235 ; Blunt a. Boyd, 3 Barb., S. C., 211; Cailleux a. Hall, 1 E. D. Smith, 5.)

<7udgment affirmed.

Present, Daly, 3?. J., and Bkady and Hilton, JJ.