We must assume here the most favorable construction which the evidence will bear for the plaintiff, as all conflict and doubt has been settled in his favor by the jury. We may assume, then, as the effect of the evidence (although it is not very satisfactory), that the defendant, in borrowing the money of the plaintiff and disposing of the Marsh note to him, was ostensibly acting for himself, and not as agent for Marsh, and that he promised that the note was good, and would be paid at maturity. The defendant claims that *Page 271 this promise, not in writing, is void under the statute of frauds. The reasoning to take this promise out of the statute is quite subtle, and I should have much difficulty in yielding it my assent, but for the authorities which I think ought now to control. The following are some of them: (Fowler v.Clearwater, 35 Barb., 143; Dauber v. Blackney, 38 id., 432;Lossee v. Williams, 6 Lans, 228; Johnson v. Gilbert, 4 Hill, 178; Brown v. Curtiss, 2 N.Y., 225; Cardell v.McNiel, 21 id., 336; Bruce v. Burr, 67 id., 237.) InJohnson v. Gilbert, the plaintiff, at the defendant's request, paid one James Sherwood a debt which the defendant owed Sherwood, and in consideration of that payment, the defendant transferred the note of one Eastman to the plaintiff, and guaranteed the payment of the note. It was held that this guaranty was not within the statute of frauds. Judge BRONSON said in that case, by way of illustration, that if A. sells and delivers his horse to B., and B. delivers to A. the note of C. for one hundred dollars, and agrees that the note shall be paid at maturity, it is an original undertaking, and not within the statute of frauds. In Dauber v. Blackney, Judge HOYT, writing the opinion of the court, and reviewing many decisions, said: "That wherever the holder of a note against a third person turns it out in payment of his own debt, or in payment of property purchased, or for money received by him from the person to whom he transfers it, and at the same time agrees that the note is good, or will be paid at maturity, or that it will be collected by due process of law against the maker, this is an undertaking, in substance, entirely for his own benefit and advantage, and the contract is valid, although it rest entirely in parol, and is not within the statute of frauds." In Cardell v. McNiel, the defendant, making a purchase of a horse of the plaintiff, delivered to him the chattel note of a third person in part payment, and agreed by parol that the maker was good, and that the note would be paid when due, and it was held that the agreement was not within the statute of frauds. Judge COMSTOCK said: "In mere form it was certainly a collateral *Page 272 undertaking, because it was a promise that another person should perform his obligation. But, looking at the substance of the transaction, we see that the defendant paid, in this manner, a part of the price of a horse sold to himself. In a sense merely formal, he agreed to answer for the debt of Cornell. In reality he undertook to pay his own vendor so much of the price of the chattel, unless a third person should make the payment for him, and thereby discharge him." In Bruce v. Burr, defendant contracted to sell and deliver to the plaintiff a quantity of books, receiving in payment therefor of the plaintiff the promissory note of one Lund. At the time of the transaction, the plaintiff orally guaranteed that Lund was responsible, and that the note would be paid at maturity. It was held that the guaranty was not within the statute of frauds.
Here the money was delivered to the defendant for his own benefit, and the Marsh note was delivered to and received by the plaintiff as a mode of paying the plaintiff for the money thus had. The defendant's promise may be regarded, in effect, not as a collateral promise to answer for the default of Marsh, but as a promise to pay the plaintiff for the money he had had, in case Marsh did not pay him, like the promise of one to pay his own debt, in case a third person did not pay it. Within the principles laid down in the authorities above cited, such a promise is not within the statute.
The judgment should be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Judgment affirmed. *Page 273