This case, which originated in a bill filed on the equity side of Baltimore county court, has been argued by counsel, and fully examined and carefully considered by the court.
The defendant Riely has filed exceptions to the averments of the bill, and also upon the ground of the absence of other averments, supposed to be essential to the complainant’s right to the relief prayed by him. But without deciding upon these exceptions, and assuming the bill to be unexceptionable in its structure, I shall proceed very briefly to examine the complainant’s right to a decree, upon the merits of the case, as disclosed by the evidence and pleadings.
If the case presented by the bill be such as the complainant’s counsel insists it .is, and as I shall assume it to be, the statute of frauds relied upon in the answer of Riely, is no defence. It is not upon this assumption, — an attempt to charge the defendant with the debt of another, — which can only be done in writing, and upon a consideration expressed in the *17writing itself, but it is an effort to make the defendant pay money due from him to one person, to another to whom his alleged creditor is indebted, upon the ground of an equitable assignment by his creditor to such third person. The defendant, therefore, upon the theory of this bill, as understood by the complainant’s counsel, is not called upon to pay the debt of a third person, but to pay his own debt to the party, to whom his creditor has assigned it; and if such assignment was made, and duly notified to the defendant, it may be, that under the circumstances of this case, a court of Equity would be competent to grant relief. 1 Gallison’s Reports, 630.
It appears by the pleadings and proofs in this case, that on the 20th of December, 1844, the defendant Riely entered into a contract in writing with his co-defendant, Samuel Hess, by which the latter was to build for Riely a brick house, in the city of Baltimore, the plan of which is described in the contract, for the sum of $6,600, of which $600 was to be paid in cash, $3000 in goods, and $3000 in the notes of Riely, to be divided in three payments of $1000 each, dated when the house should be completed, and payable without interest, at one, two, and three years, from date.
It is also shown, that Hess contracted with the complainant, Rider, for the brick for this house, and for another house, which he was building for Mr. Leche, and that on the 2nd of August, 1845, there was due from Hess to the complainant, for brick furnished by him for the building of these two houses, the sum of $3021,10. It further appears by an account admitted to be correct, that the defendant Riely, from the 12th of February, 1845, to the 30th of April, 1846, paid to Hess, in cash, in person, and upon his order, and in merchandize, $6835,66, — exceeding by some hundred dollars, the sum to be paid for the house ; and that on the 9th of March, 1846, when Hess petitioned for the benefit of the insolvent laws, the house was unfinished, and that the defendant Riely was subjected to an expense of about $800 to complete it.
The bill in this case charges, that for the bricks to be furnished by the complainant to Hess, the defendant, was (and t.o the extent of at least $3000, through said Riely), to be paid by said Hess, under said contract, at a certain price, &c.; and *18that Hess, for bricks furnished under the contract, being indebted to the complainant in a sum exceeding' $2000, on or about the 1st of July, 1845, he, the complainant, applied to him for payment, at least in part, of this demand, or for security for payment. That thereupon, Hess, as by him expressly stipulated at the time he contracted with the complainant for the bricks, and as part of said contract,- agreed with the complainant, that in pursuance of said original contract, he should receive. And the complainant assented, as by him originally agreed, to accept payment to the extent of $3000 of his demand for bricks furnished, and yet to be furnished from Riely,out of, and on account of the sum for-which Riely was liable' and indebted to Hess for said building.-
That at that time, and when «the complainant reminded Riely of said agreement for the complainant’s payment, there was an amount due, and becoming due, and payable for the building, from Riely to Hess, exceeding the amount of complainant’s claim against Hess, provided by him as before staffed to be paid. That the complainant promptly thereafter notified Riely thereof, and requested and required him to pay and provide for the complainant’s claim, out of the sum claims able as aforesaid from him, the defendant, to Hess. That-' Hess, in like manner, notified Riely, and directed to him to' pay the complainant’s claim, which he promised to do accord- - ingly, out of said liability to Hess, as the same should mature, - and become due, to wit, in his three promissory notes, each-for $1000, payable in one, two, and three years, respectively, from the 1st of November, 1845. And the- bill prays for relief, commensurate with the case thus stated.
In order to make out this case, therefore, two things must be proved or admitted,—
First, that Hess did contract and agree to pay or secure the'' complainant, in the way alleged by him, and—
Secondly, that the defendant Riely had due notice thereof, before he had paid to Hess, or upon his order, upon his contract with him, the amount thereby stipulated to be paid.
It is said that the answer of Riely has not met the allegations of this bill, in that full, explicit, and frank manner, which is required to give the defendant the benefit of a direct *19-denial of the ¡allegations, upon which the complainant’s equity is supposed to rest; and that therefore, the well established ■principle, that two witnesses, or one witness with corroborating circumstances, are necessary to overcome an answer responsive to the bill, should not be applied to this case. It may be remarked, however, that if the complainant had reason to believe, that the defendant had practised too much reserve in his answer, and that something was kept back, which if disclosed, would have assisted the complainant’s case, he would have ■'had recourse to the usual method to bring it out, — the rule being, that a defendant who submits to answer, must answer -fully and explicitly, and that he may be pressed by exceptions ¡until he thus answers.
But as I understand this answer, it does meet, and deny fully and unequivocally, the allegation, that he was notified of the agreement between the complainant and Hess, or that he knew •of the existence of any such agreement. He denies in the plainest terms that could be employed, that he ever was in.formed of, or reminded, of any such agreement, or that he ever was notified or requested, either by the complainant or Hess, “to pay or -provide for the claim of the complainant on said Hess, in any manner whatever.” The answer admits, that some time after Hess had applied for the benefit of the insolvent laws, the complainant called upon the defendant, and asked him about the notes spoken of, as though he believed he had a claim upon them, when the defendant told him he did not know him in the transaction, and the conversation ended. But this interview, even if it would amount to notice of an assignment, which might well be doubted, was after the defendant had paid to Hess, or upon his order, an amount'exceeding his claim for building the house, — though for the reason already stated, he was not entitled to be paid the entire sum.
Being then of opinion, that the weight and effect of this answer can only be overthrown by two witnesses, or one with pregnant circumstances, let us for a moment look at the evidence and circumstances, to see if such proof can be found.
The only witness, whose proof is relied on to establish the fact of notice, is Samuel Hess, the party with whom the de*20fen(3ant Riely contracted for building the house. It is not deemed necessary to examine very minutely the testimony of this witness for the purpose of ascertaining, whether it is sufficiently clear and explicit, to fix upon the defendant Riely the consequence of notice of the alleged assignment. Because, assuming that it sustains the plaintiff’s view of it, it is not only destitute of any corroborating circumstances, but there are circumstances of the most pregnant character opposed to it.
According to the testimony of this witness, the defendant, in the spring of 1845, about the time the house was commenced, was informed that Hess had purchased the brick from the complainant, on the security of the three notes, which the defendant was to deliver to Hess, on the completing of the houses, and that subsequently in July of the same year, in another conversation between the witness and the defendant, upon the subject, and when the witness had called upon the defendant, for the purpose of getting some mosey, the defendant told him, the complainant had been to see him upon the subject, and that he, the. defendant told the complainant, “it was all right, arid that the notes were still in his hands, and that he intended to secure them for Rider,” “and that he could not let the witness have money on that account.”
Now, if this is true, it is difficult to assign a reason for the large subsequent advances made by the defendant to the witness. Why should he, in July, 1842, refuse to pay him money because of the obligation to secure the notes for the complainant, and yet, after that period, make him large advances in cash, to an extent, when added to the payments previously made, exceeding the whole sum to be paid for the house! The endorsement upon the contract of the 20th of December, 1844, which appears to be ante-dated, furnishes, in my opinion, no sufficient explanation of a course of conduct, so much at variance with that which a prudent man would have pursued, in similar circumstances. That endorsement, which, according to the evidence of Hess, was made in July or August, 1845, affords, I think, very strong evidence that Hess, by whom it was signed, at that time, did not think that the notes were to be reserved for the complainant.
On the contrary, it is manifest, he supposed the money *21tobe secured by the notes, was still at his disposal, and he desired the payments should be anticipated, if necessary to enable him to complete his contract. With what propriety could he agree with the defendant, for advancing him money on these notes, if he had stipulated with the complainant, that he should have them ! And is it at all likely, that the defendant would have made such advances, and then exposed himself to the peril of serious loss, if he had been notified of the assignment of these notes to the complainant!
C. F. Mayer & Ward for plaintiff. Latrobe & Horsey for defendants.I cannot bring myself to think so. Here, then, is the case of an answer, explicitly denying the fact, upon which the equity of the complainant’s claim for relief rests. This answer is contradicted by one witness, but the conduct of that witness, and the conduct of the defendant, are strong to create doubt of the accuracy of the statement of the witness. And therefore, giving the answer the effect to which it is entitled, it follows, that the plaintiff has failed to make out a case for relief, and his bill must be dismissed.