Fay v. Jones

The promise of the defendant to Lasher to pay a portion of a pre-exsisting note which the *342former owed to the latter, and which was not then due, to White, a creditor of Lasher, was without consideration, and did not create any legal obligation. All that Lasher proposed to do, as a motive for the promise, was to apply the payment on the note, which the law would have done on the payment of a portion of the note being made at his request, without any undertaking on his part to do so. In legal effect, therefore, Lasher simply requested the defendant to make the payment, which was the only inducement to the promise. If the defendant, upon the request simply of Lasher, had promised to pay him a part of the note, it is manifest that the promise would not have had any binding force. The present case does not differ from such an one in principle. (See Blunt v. Boyd, 3 Barb. S. C. Rep. 209.)

The promise of the defendant to White to pay the debt owing to the latter by Lasher was of a similar character, without consideration and void. The only motive for it was the request of Lasher, and his engagement to apply the payment on his note against the defendant. White did not undertake to do any thing.

Neither the debt in favor of White, nor that in favor of Lash-er, was at all affected by the promise of the defendant. Both debts remained in full force, and the rights and obligations of all parties in respect to them were unchanged.

If the defendant had paid the debt of White, upon the request of Lasher, in part payment of his note, while the request continued unrevoked, the payment would have applied upon the note to Lasher in like manner as if a payment had been made directly to the latter; but the request might be withdrawn at any time, and the assignment by Lasher of his note to the plaintiff, with notice thereof to the defendant, was a sufficient revocation of it. The defendant had no right to act upon the request thereafter.

When the plaintiff took an assignment of the note to Lasher, and gave notice of it to the defendant, the defendant had no defense against the note, and he did not acquire any by his subsequent payment of the debt to White.

The proof offered to be made by Henry Jones, that “ at the time, and immediately after the note was given, it was agreed between the defendant and Lasher that the defendant should pay *343$9 of said demand to White”—it being conceded that the payment was not made until after verbal notice of the assignment of the note—was properly excluded. If verbal proof of a valid agreement to that effect, at the time of giving the note, would have been admissible,-it was not proposed to show that there was any consideration for the agreement offered to be proved, and none is alleged in the answer. The evidence would not have aided the defendant.

Ho substantial error was committed in rejecting the proof offered to be made by the witness Horthrup. If the proof had been received, it would not have varied the result. It was not proposed to give any further evidence in connection with it.

It is no ground for reversing the judgment, that the court, after the close of the evidence, decided that the promise of the defendant was within the statute of frauds, and therefore void. The decision that the agreement was void is correct, although not for the reason assigned at the trial. (Brown v. Curtiss, 2 Comst. 225. Barker v. Bucklin, 2 Denio, 45.) And it is apparent that the defendant was not prevented by the reason given from introducing any evidence of a consideration for the agreement. (Hanford v. Artcher, 4 Hill, 271.)

A verbal notice to the defendant, of the assignment of the note to the plaintiff, was sufficient. The sections referred to, of the code, have no application.

Judgment affirmed.

Johnson, Welles and T. R. Strong, Justices.]