Biven v. Bostwick

Thornton, J. This action is brought on a promise by the defendant to pay over a sum of money in his hands to the plaintiff. The questions presented relate mainly to the sufficiency of the evidence to sustain the verdict of the jury on certain special issues submitted to it. The evidence, in our judgment, was sufficient for that purpose. The defendant requested the court to instruct the jury as follows:— This action is brought to enforce a special promise alleged to have been made by the defendant to Jesse A. Mitchell to pay a certain indebtedness from said Mitchell to the plaintiff in this action; and before the plaintiff can recover, you must be satisfied from the evidence that the defendant, at or about the time charged in the complaint, “promised the said Mitchell to pay to the plaintiff the amount 'or residue left in the hands of Bostwick after paying to himself the amount secured by the mortgage of Mitchell to Bostwick.” The instruction was refused, and defendant excepted. The plaintiff was entitled to recover if the promise was made at any time before the commencement of the action. It need not have been made at or about the time charged in the complaint. The court did not, therefore, err in refusing the instruction as asked. There is no error in the record. Judgment and order affirmed. McKee, J., and Sharpstein, J., concurred.