It appeared from undisputed evidence that the plaintiff was lessee from the Messrs. Warren of a store on *Page 562 River street, in the city of Troy, for the term of five years from May 1, 1871, at an annual rent of $1,500, payable quarterly; that he owned or controlled a one-half interest in the stock of goods in the store; that the defendant at the same time was the owner of a paper mill in that city; that a negotiation between the parties resulted in an agreement that the defendant should sell to the plaintiff the mill and its machinery for $32,500, and receive in payment therefor certain notes and mortgages, the half interest in the stock of goods; and as the plaintiff's testimony tends to show, the possession of the store for the unexpired term (then about fourteen months), for which the defendant on his part agreed to pay the rent to the lessors. This term of the agreement is denied by the defendant. It is, however, uncontroverted that the defendant, on the same day, was placed in possession of the store and goods by the plaintiff; that he carried on business there until the 25th of May following, and paid the lessors rent up to that time, when he sold out, and making no further payment, this action was brought to recover the sums unpaid.
The learned trial judge submitted the case to the jury, and after stating the facts of the negotiation, said: "The inquiry which you are to determine is: What was the arrangement between these two parties upon one single question? — besides that they are not at variance at all. On the part of the plaintiff, he claims and asks the jury to find from the evidence in the case, that the defendant agreed to take the unexpired term of the lease from the Warrens, and pay the rent upon the lease until its conclusion. * * * * The plaintiff testifies that this was the arrangement between the parties; that the defendant took the store of goods and with it took the unexpired term, and agreed to pay during the whole term the amount of rent reserved in the lease." * * * * Adding "Upon the other hand, you have the evidence of the defendant, who has testified expressly and squarely that he entered into no such agreement; that he never agreed to take that term, and never agreed to pay the rent to the Warrens." He *Page 563 also called the attention of the jury to the evidence adduced by each party bearing upon the point in controversy, and said: "It is for the jury to determine which is right from all the evidence in the case. If you believe, therefore, that, as the plaintiff claims, the defendant in the action took this term and agreed to pay the rent during this term (until the expiration of the lease), then the plaintiff is entitled to recover this amount of money, and ought to have a verdict for it. On the other hand, if you shall conclude, in view of all the facts and circumstances, he did not thus agree, your verdict will be for the defendant."
The defendant's counsel excepted "to so much of the charge as states that `if the defendant took this term and agreed to pay the rent during the term, till the expiration of the lease, the plaintiff is entitled to recover.'" It should be noticed that no fault was found in the assumption by the court that the other terms of the agreement were conceded. The plaintiff had a verdict which the trial court approved, and after judgment, the General Term affirmed. If we take the conceded facts and add the finding of the jury, we have a very simple transaction. A sale of land by the defendant, his receipt, in part payment of a stock of goods, and the possession of the store containing them, subject to accruing rent which he promises to pay.
The appellant puts his appeal upon the statute of frauds. We think it has no application, and that the case was properly submitted to the jury. If, as they have found, the plaintiff's version of the transaction was the true one, the defendant's promise to pay the rent was upon a new consideration, moving directly to him, and made for his own benefit, and not for the benefit of the plaintiff. The general object and purpose of the transaction, or the "res gestæ" as it is termed in Williams v. Leper (3 Burr. 1886), shows that the intention of the parties was not that the defendant should become responsible for the payment of the plaintiff's debt to the lessors, but that he should assume, as a new and independent duty, that of paying to the landlord the rent specified in *Page 564 the lease. This obligation was part of an undivided transaction and stands upon the whole as a consideration. It comes, therefore, within the principle under which it has been often decided, that the purchaser is bound by his promise to pay the price to a creditor of the vendor, although it is not in writing and the vendor remains bound. (Leonard v. Vredenburg, 8 Johns. 29; Barker v. Bucklin, 2 Den. 45; Mallory v.Gillett, 21 N.Y. 412.)
It is also apparent that there was a complete performance by the plaintiff, and an acceptance of that performance by the defendant. The plaintiff received from the defendant the mill property, and turned out to him the mortgages, notes and money, stock of goods and possession of the store, and these things the defendant received and retained according to his pleasure. Every thing has been performed except his promise to pay the rent in question. The judgment in this case calls for nothing more, and justice requires that it should be paid. (Kohler v. Matlage,72 N.Y. 259.) It would be a perversion of the true purpose of the statute to give it such construction as would protect the defendant in the enjoyment of advantages obtained from the plaintiff in reliance upon an oral agreement on which the latter acted.
If the plaintiff had refused to put the defendant in possession, he could have rescinded the contract; if the plaintiff interfered with his possession, he could sue for damages (Gray v. Hill, Ryan Moody, 420); if for his security an assignment in writing of the lease was necessary, or a written contract for the possession, a court of equity would have compelled its execution; but neither of these things is asserted. The case is within the established rule that a parol agreement in part performed is not within the provisions of the statute. It was, therefore, well disposed of by the General Term, and its judgment should be affirmed.
All concur.
Judgment affirmed. *Page 565