McLaren v. Hutchinson

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. George H. Beach was indebted to the plaintiff and several other persons for work and labor done on the “ New England Farm.” Beach sold the farm and other property thereon to the defendant, and as a part of the price the defendant agreed in writing with Beach to pay the plaintiff and the other laborers the debts due to them. Immediately after, the plaintiff and the other laborers agreed with defendant to release Beach from the debts, and to look to him alone for their payment. The other laborers assigned their claims to the plaintiff, and he brought this action to enforce the contract. The case was tried by the Court, who found in favor of the plaintiff, and judgment was rendered accordingly, from which, and an order refusing a new trial, the defendant appeals. This action has been already before this Court upon the pleadings, and will be found reported in 18 Cal. 80. Upon the return of the case to the Court below the pleadings were amended, and the point upon which the former decision was founded is not now in the case. It is now objected that the Court erred in finding that the plaintiff and his assignors “ agreed ” with the defendant to look to him for the payment of their debts, and the counsel for the appellant sets forth what he understands to be facts from the evidence on this point; that is, that the defendant, in the absence of Beach, stated to the plaintiff and his assignors that “ he had purchased Beach’s property, and had agreed with Beach to pay their claims, and stated to them that he was to pay them, and that such claimants then stated to defendant their willingness to look to him.” The facts, as thus stated by the counsel, amount substantially to an agreement between these parties and the defendant, as found by the Court. But even if they differed materially, it is the finding of the Court that is to govern, unless clearly unsupported by evidence which is not claimed in this case. [190] The next question raised by the appellant is, that the defendant is not liable to the plaintiff; that his only liability is to Beach, upon his written contract; and that the agreement with the plaintiff and his assignors, not being in writing, is void under the Statute of Frauds. The defendant being indebted to Beach for the purchase money of certain property, and Beach being indebted to the plaintiff and his assignors, the two mutually agree that the defendant shall pay these debts of Beach, and this is assented to by these creditors of Beach. Here is a mutual agreement by the parties interested, and it can make no difference that this mutual agreement was not perfected at the same moment of time, or that all were not present at the time of its completion. Beach and the defendant assented to it, when the agreement was signed and delivered, and the creditors afterwards assented, when informed of the agreement by the defendant. Their assent to the agreement gave them a right of action against the defendant, and the case is not within the Statute of Frauds. (Farley v. Cleavland, 4 Cow. 432; Tatlock v. Harris, 3 Term, 174; Wilson v. Coupland, 5 Barn. & Ald. 228; Heaton v. Angier, 7 N. H. 397; Gold v. Phillips, 10 Johns. 142; Olmsted v. Grunly, 18 Id. 12.) One branch of the rule upon this subject is very clearly laid down in Farley v. Cleavland (4 Cow. 432), in these words: “In all these cases, founded upon a new and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the party making the promise, either from the plaintiff or the original debtor, the subsisting liability of the debtor is no objection to the recovery.” It is also insisted that the plaintiff cannot recover upon the claims assigned to him by the other parties. This is not a valid objection. Our Practice Act clearly authorizes the assignment of things in action, such as accounts and unliquidated demands arising out of contract, and the mere fact that the liability on the original contract has been transferred from Beach to the defendant can make no difference in the right to assign, or the right of the assignee to maintain the action in his own name. The judgment is affirmed.