Brown v. Curran

The firm of L. Richards & Co. sold and delivered to the defendants goods, wares and merchandise inventoried at a trifie over $6,000, in consideration of which sale and transfer the defendants-promised “at their own proper costs and expense to settle, satisfy and pay all debts against the said firm of L. Richards & Co. mentioned in a certain schedule marked B * * on such terms and conditions as they might be able to agree (upon) with-said creditors mentioned in said schedule;” and to save said firm “ harmless from any and all of said creditors.” This promise on the part of the defendants vas on valid consideration, and was. binding on them, and the creditors of the firm of L. Richards & Co. whose debts were specified in the schedule might maintain an action directly against them for its enforcement. It is the settled rule that if one person, on valid consideration, make a promise to another for the benefit of a third person, such third person may maintain an action upon the promise. (Lawrence v. Fox, 20 N. Y., 268; Arnold v. Nichols, 64 N. Y., 117, and cases there cited.) The debts or claims in suit were mentioned iii schedule B referred to, they -were therefore within the purview of the defendants' promise. So the referee properly awarded judgment against the defendants therefor.

The defendants insist, however, that the promise was condinal, and not binding on them unless they were able to make-terms with the creditors holding the debts; and that as to.the debts in suit they were unable to do so. We are of the opinion, that the agreement will not admit of this construction. The. promise is very specific, “ to settle, satisfy and pay ” the debts. The clause following, “ on such terms aud conditions as they might be able to agree upon with the creditors holding the debts or claims,” in no way changes or qualifies their obligation. The right and privilege of obtaining terms of settlement with the-holders of the claims would remain to them, whether expressed or omitted in the agreement. Undoubtedly the defendants expected to obtain terms better than full payment of the debts. But their promise “ to settle, satisfy and pay ” the debts remained intact. The referee gave, as we think, the proper legal construction to-the agreement in this respect.

*263It is- also insisted that the promise was limited to the creditors named in the schedule; and that the debts in suit did not belong to any creditor, party or parties, named therein, hence that those debts did not and do not come within the purview of the promise. The answei to this objection is, that the promise embraced or had application to the debts mentioned in the schedule — to those debts there described. It was the debts there mentioned, not the persons there named as creditors, that were to be paid according to the agreement. In this lies the distinction between the case in hand and Barlow v. Myers (64 N. Y., 41), in so far as it is important to mark a difference between the cases. There can be no question but that the debts in suit were mentioned (described) in the schedule. This objection to the recovery we also think untenable. The exceptions to the rulings of the referee on questions of evidence are quite unimportant in the view here taken of the case. If we have rightly construed the agreement, and have given no undue effect to the defendant’s promise, the rulings on questions of evidence have worked no possible injury to the defendants.

The judgment must be affirmed with costs.

Judgment affirmed with costs.