There is nothing in the defendant's letter of October 22d 1860, which justifies the assumption by the court that he intended to make any agreement with the plaintiff, or authorized or expected it to be shown to him. It appears to be a friendly, personal and confidential letter from the defendant to a near relative — the wife of his nephew. Nor does the evidence justify the assumption made by the court that the letter of the defendant could be construed as an engagement with the plaintiff.
The evidence of the plaintiff, that Mrs. Birdsall had told him that the defendant had authorized her to show the letter to him, was of no consequence. It was hearsay, merely. That of Mr. Weller, that the defendant told him he had given the letter to Mrs. Birdsall to be given by her to the plaintiff, was flatly contradicted by the defendant. It became, then, under the most favorable aspect of the case for the plaintiff, a question of fact for the jury. If the defendant authorized the letter to be shown to the plaintiff, I think there would then be no doubt that it might be considered as an agreement with him.
The case of Scott v. Pilkington (15 Abb. Pr. R., 280) would then be an authority in point. The referee in that case found that the letter of the defendant was written for the purpose and with the intention that it should be exhibited to the plaintiff. The General Term affirmed the judgment *Page 636 expressly upon the fact so found. That was the fact which bound the defendant as upon a promise to the plaintiff.
The other cases relied on by the plaintiff (Judson v. Gray, 17 How. Pr. R., 289; Lawrence v. Fox, 20 N.Y., 268; Barker v. Bucklin, 2 Denio, 45) have no application in principle to the case presented here. Those cases are express promises by the defendant to pay his own debt, on a consideration proceeding from a third party to the plaintiff.
The court, in the present case, considered the letter as an undertaking by the defendant with the plaintiff, and refused to hold with the second request of the defendant, that the plaintiff had no right of action on the instrument declared on, but instructed the jury that the plaintiff was entitled to recover as matter of law. The defendant's exceptions to these rulings were well taken.
I think, also, that it was a part of his case for the plaintiff to prove that Mr. Birdsall was unable to pay, and that it was error to refuse the sixth request of the defendant, relating to that subject. There was affirmative evidence that he was able to pay, and none of a legal character to the contrary.
In my opinion, too, the plaintiff was required, by the terms of the letter, if it be considered that a case was made of a probable intention on the part of the defendant to contract with the plaintiff, to furnish the defendant with a renewal note before the former one became due.
The judgment should be reversed and a new trial ordered, with costs to abide the event.