Nortrip v. Hermans

Ross, J. The plaintiff, on the 11th of March, 1893, had entered into a contract with one Charles T. Snavlin to purchase certain real property for the sum of $1,850, payable $100 down and $16 each month thereafter. On the 5th of September, 1894, the plaintiff assigned to the defendant by an instrument in writing for the purported consideration of $1,633.95, which was the amount that at that time was unpaid upon the contract. The plaintiff upon the' trial testified as follows-: “ He: gave me the horse and wagon for my equity in this house and lot; he was to take, the contract añd make the payments according to the contract.” This was objected to by the defendant, who also moved to strike the same out upon the ground, with other reasons, that' the agreement was merged in- the assignment, and that a parol agreement was inadmissible.. That no motion was made to strike out, dr objection on the ground that it stated a conclusion, or that the plaintiff-should have stated the conversation, which, per [314] haps, was done upon the trial and very probably the justice simply took the substance of the answer. .. . • The defendant claims that the judgment is erronéoús because, with other reasons, of the improper admission of the above evidence,' and upon the further ground that if a cause of action exists against the defendant that it belonged to Snavlin and not the plaintiff, and more particularly that because the plaintiff has not ■ been called upon to pay that there is no liability, and'also-that the land, is the primary.fund and should be first exhausted. Contrary to my impression at the time, of the argument, I think the judgment should be affirmed. The evidence was 'properly admitted and actual consideration may be shown by parol. Wheeler v. Billings, 38 N. Y. 263; Hebbard v. Haughian, 70 id. 54; Baird v. Baird, 145 id. 665; see, also, Batterman v. Pierce, 3 Hill, 171; Juilliard v. Chaffee, 92 N. Y. 529. If defendant is liable at all, he is liable upon the following promise: “ He was to take the contract and make the payments according to the contract.” By this.agreement the defendant made the debt his own ahd not one of indemnity only, which is not payable until the plaintiff has paid. “ The defendant is not at liberty to, say that the debt is plaintiff’s; let him first pay it and he will pay him; it is his own debt, made so by. the terms of his contract.” Churchill v. Hunt, 3 Denio, 321; Rector, etc., v. Higgins, 48 N. Y. 532 and 535-6; Belloni v. Freeborn, 63 id. 384; Kohler v. Matlage, 72 id. 266; National Bank v. Bigler, 83 id. 52; Albere v. Kingsland, 13 N. Y. Supp. 794; Maloney v. Nelson, 144 N. Y. 187. The case of Slauson v. Watkins, 86 N. Y. 597, and other similar cases are all cases of indemnity solely. . . ■ Judgment affirmed, with costs.