Contrary to my first impression, I think the judgment rendered at the special term, overruling the defendant’s demurrer in this case, was correct and should be affirmed. The counsel for the defendant is mistaken in supposing that the action is on an agreement to save harmless. It is true, the complaint alleges that the defendant agreed to pay to Cameron, (the assignor of Frank Hay, the immediate assignor of the plaintiff,) the amount he would be liable to pay for the flour (from its purchase in his name and with his consent, and on his responsibility) to save Cameron harmless; but this is a mere allegation of the object or purpose of the agreement, probably unnecessarily made, and not of the legal effect of the agreement as stated in the complaint, viewed in its relation to the other facts stated in the complaint. The complaint alleges that the defendant being desirous of purchasing flour for shipment abroad, but not being able to make such purchases in his own name, applied to Cameron for leave to make purchases in his, Cameron’s, name; and that it was agreed by and between Cameron and the defendant, that the defendant might make such purchases in the ‘name and upon the responsibility of the said Cameron; and that he should pay to Cameron the amount thereof, so as to save the said Cameron harmless by reason of such purchases. That in pursuance of such arrangement the defendant, in November, 1856, and January, 1857, bought in said Cameron’s name flour to the amount of $86,939.20, all of which the defendant received and shipped in his own name, and had the benefit of, and for which he promised to pay Cameron; that the defendant had made payments to Cameron for a large amount, but left unpaid on the 1st day of May, 1857, $3500.
Now the legal effect of all this is, that Cameron bought the *382flour fly the defendant as his agent, and let the defendant have the flour, who paid Cameron for it, with the exception of $3500; and the complaint alleges that Cameron’s claim for that balance had been assigned fly Cameron to Frank Hay, and fly the latter to the plaintiff. The defendant is not liable to the party or parties of whom the flour was bought, and it is of no consequence to him whether Cameron has or has not paid for the flour. Supposing Cameron had not paid for the flour, that is no reason why the defendant should not do as he agreed, and pay Cameron, as the defendant had the flour.
[New York General Term, September 20, 1858.Davies, Hogeboom and Sutherland, Justices.]
' It was not necessary for the plaintiff to allege that Cameron had paid for the flour, or had sustained any other damage than the non-payment of the $3500 fly the defendant. If or is it necessary, in my opinion, in aid of the plaintiff’s complaint, to invoke the principle of the cases of Thomas v. Allen, (1 Hill, 145,) and Churchill v. Hunt, (3 Denio, 323.)
If the defendant has paid either the original sellers and holders of the flour, or Cameron, before or since the assignment without notice, that is matter of defense.
The judgment given at the special term must be affirmed, with costs.