Wynn's Administrator v. Wood

Mr. Justice Mercur delivered the opinion of the court, May 2d 1881. The court thought the evidence of the plaintiff' insufficient to submit to the jury. It therefore ordered a compulsory nonsuit, and refused to take it off. This presents the alleged error. The defendants, Wood, Sharp & Haines, are copartners in the business of manufacturing and selling window glass and in selling oils and paints. They are the successors of the firm of F. F. Sharp & Co. This original firm was indebted to the plaintiff before and at the time of the transfer to the defendants. It transferred all its stock in trade, good-will, fixtures and book accounts to the defendants. The contention is whether the terms of transfer, and subsequent transactions, gave the plaintiff a legal right of action against the defendants to collect the debt due him, or any part thereof. It is true, as a general rule, an action on a contract must bo in the name of the party holding the legal interest therein ; yet this is not invariably so. In many cases, a third person may maintain [220] an action on a promise made to another. Hence, if one deliver money or personal property to another under the promise of the latter to deliver it over to a third person who has a beneficial interest therein, or to convert it into money and pay him the pro ceeds, the third person can maintain an action therefor against the promisor: Hind v. Holdship, 2 Watts 104; Beers v. Robinson, 9 Barr 229; Vincent v. Watson, 6 Harris 96; Bellas v. Fagely, 7 Id. 273; Torrens v. Campbell, 24 P. F. Smith 470; Townsend v. Long, 27 Id. 143; Kountz v. Holthouse, 4 Norris 235; Justice v. Tallman, 5 Id. 147. What, then, was the evidence ? As it stood uneontradicted, was it sufficient for the jury to have passed upon it ? All the terms and conditions of the bargain were not reduced to writing at the time the defendants acquired the property of F. F. Sharp & Co. The terms are proved partly by parol and partly by an instrument in writing executed about the same time by the defendants between themselves. F. F. Sharp was one of the previous firm, and became one of the new, or defendants’, firm. He testified, inter alia, that the defendants’ firm did receive assets from F. F. Sharp & Co., amounting to about $114,000, and was to pay 80 per cent, of the liabilities of the firm of F. F. Sharp & Co., and the indebtedness due the plaintiff was among the liabilities thus assumed by the defendants. The written articles of copartnership between the defendants recites : Whereas, said firm “did agree to purchase from them, F. F. Sharp & Co., all their stock in trade, good-will, fixtures and book accounts at the full market value thereof, as by reference to the proper bills of sale will more fully appear, and to pay for the property purchased by distributing the purchase-money among the creditors of F. F. Sharp & Co. until the said creditors are satisfied, supposing the purchase-money to go so far, and to pay the surplus, if any should be found after satisfying the creditors, over to F. F. Sharp and his partner, Isaac Sharpless.” This agreement of co-partnership further stipulated that “ Wood shall have general supervision of the business.” The evidence of Wynn, the plaintiff, taken in his lifetime, is that he was in the employ of F. F. Shar-p & Co..at the time the property was transferred to the defendants, on the 20th of February 1873. The defendants reported to him that they took the assets' of F. F. Sharp & Co., and assumed their liabilities to the extent of j 80 per cent. He further testified that, after the transfer to the defendants, Wood promised to pay him the amount due if he would make out the amount and give it to him; that he made it out and gave it to him. Wood said to him he ought not to take 80 per cent., but was entitled to all of it; that he would pay it. Haines had previously urged him to make out the account and send it to Wood; that he had promised to pay it if plaintiff would make it [221] out; that Sharp, while a member of the firm, told him that Wood had the account, and promised to pay him. F. F. Sharp, one of the defendants, also testified, “ I did promise Wynn, the plaintiff, that Wood, Sharp & Haines would pay him for the services he rendered the preceding firm.” It is unnecessary to refer to more of the evidence in detail. As already shown, the defendants made no payment at the time they took possession of the property valued at $114,000. The evidence of F. F. Sharp leaves it uncertain precisely what sum the defendants should pay, and whether that sum was not to be guaged by, and paid out of, the sum realized out of the property taken by them. Their own written averment is that they were not to pay F. F. Sharp & Co. anything until the creditors were satisfied, if the purchase-money was sufficient for that purpose. If the contract of the defendants was one of purchase, their agreement was not to pay the debt of another, but to pay their own debt incurred in the purchase of the property ; and perhaps a jury might find that the extent of their obligation to pay was to be limited to the application of the proceeds of the property of which they took possession. The evidence shows the defendants carried on the business for a short time. They collected the accounts assigned to them, so far as they were collectable, and applied some of the proceeds to their own use. They also paid most of the creditors of their predecessors. Still further, they paid $12,000 to Sharp, who was a member of both firms, and $5000 to Sharpless, the other member of the firm of F. F. Sharp & Co. As they were not to be paid anything until the creditors were satisfied, this fact might create some presumption that the defendants had previously realized out of the assets a sttm sufficient to pay all the creditors. This might have an important bearing in arriving at the true character of the transaction. We think the evidence is amply sufficient to have been submitted to the jury under proper instructions. Objection was made on the argument that the evidence was not admissible under the narr. Inasmuch, however, as no objection appears to have been taken to its admission when offered, wo will now consider it as properly received. Judgment reversed, and a venire facias de novo awarded.