Rowe v. Whittier

The opinion of the Court was by Wht'tman C. J. — The suit of the plaintiff is on an account annexed to his writ. It is for the taxable bill of costs in an action commenced by him, in favor of Willis Patten & al. against the defendant; and for “ commissions on amount secured by attachment” in the same cause. The defendant settled the demand of Patten fy al. before judgment; and at the same time, having the plaintiff’s bill presented to him as here exhibited, verbally promised the plaintiff to pay the amount of it to him; and has paid him the amount of the taxable costs ; but now refuses to pay the amount charged for commissions; alleging that item to be a charge for which he was not, in any event, liable; and, if due from any one, it was from the plaintiffs in that suit; and that his promise to pay it was made in ignorance of his legal rights; and without consideration, and therefore void. These positions, on the pari of the defendant, seem to us to be well grounded in the law. This item for commissions could not have been recovered by Patten & al. of the defendant; [550] and therefore was not his debt. If it had been, his promise would have been available to the. plaintiff; and good without a memorandum in writing. Dearborn v. Parks, 5 Greenl. 81. But, not being so, there was no consideration for the promise. If the claim was a legal one against Patten & al. it does not appear that they were discharged from it, in consideration of •the promise made by the defendant; and if it had so appeared, the defendant, not being otherwise liable, his promise would not have been obligatory, under the statute of frauds, without a memorandum in writing. Leonard v. Vredenburgh, 8 Johns. R. 29. Farley v. Cleaveland, 4 Cowen, 432. The exceptions are therefore sustained, and a new trial granted.