S. Landow & Co. v. Gurian

Roraback, J. The plaintiff commenced its action upon the common counts, so called, and subsequently it filed a substituted complaint consisting of two counts. The defendants now contend that the Superior Court erred in denying their motion to strike out the first count of the substituted complaint. This pleading contains a detailed statement of facts, set forth in fifteen different paragraphs, one of which avers that the plaintiff was compelled to lay out and expend for the defendants, over and above what it received, $440.40. In testing the sufficiency of this part of the plaintiff’s substituted complaint, the court was limited to and controlled by the information which the common counts afforded. It there appears that one object which the plaintiff had in bringing its action was to recover money from the defendants which it had laid out and expended for them. Viewed in this aspect it is plain that the court below was justified in denying the defendants’ motion to strike out. Dunnett v. Thornton, 73 Conn. 1, 14, 46 Atl. 158; Kelsey v. Punderford, 76 Conn. 271, 56 Atl. 579; General Statutes, §§ 5664, 5665. The defendants based several grounds of their appeal upon the statute of frauds. An oral promise to discharge the debt of another, if made to the debtor himself, is not, as the defendants contend, within the statute of frauds. The statute applies only to promises made to a person to whom another is answerable. This court has held that such a promise, if on a sufficient consideration moving between the immediate parties to it, and from which the promisor is to derive *580 a benefit, in view of which the promise is made, becomes a new and independent contract existing entirely between the immediate parties to it. Reed v. Holcomb, 31 Conn. 360, 364; McCormick v. Boylan, 83 Conn. 686-688, 78 Atl. 335. See, also, Note to 15 L. R. A. (N. S.) 214, 215. The trial court has found that the defendants bought the peaches through the plaintiff, who acted for itself and as agents for the defendants. This conclusion is not questioned or criticized. The relation between the plaintiff and the defendants was not that of vendor and vendee, but that of principal and agent. The record also discloses that the items of the. plaintiff’s account correctly represent money which it paid out and expended in the execution of its agency. Under such circumstances the statute of frauds constitutes no valid objection to the plaintiff’s claim. Jacobson v. Hendricks, 83 Conn. 120, 124, 75 Atl. 85. Furthermore, the transactions mentioned in the first and second counts were one agreement, hence the receipt of one half of the first carload was a sufficient part performance to have taken the case out of the statute. The finding shows that on July 12th, peaches were sold on account of the defendants for $380.95, less cost of repacking, $17.64, and customary commission, $38.10. The defendants now contend that as a matter of law the plaintiff was not entitled to recover for the repacking and for the commission in selling the peaches. After the defendants’ unjustifiable refusal to pay for the peaches, the plaintiff could well be considered as the bailee of this property, and like any bailee it was bound to exercise reasonable care and diligence in the preservation and protection of it. The exigencies of the case were such that the- plaintiff was necessarily compelled to sell the fruit at once to prevent further loss from decay. This, it appears, was done in open *581 market, after due notice was given the defendants. It necessarily follows that these two items were the ordinary and proper expenses of the sale, which the defendants were bound to pay. There is no error. In this opinion the other judges concurred.