Phalan v. Stiles & Barney

Collamer, J. The principal objection to the auditor’s re [83] port, and the judgment of the county court thereon, seems to relate toa charge in the defendants’ account of $17,75, which was disallowed. That charge was as follows: “To balance of Stiles’acc’t . . . $17,75.” It appears that the defendants offered to show, by their own personal testimony, that the plaintiff owed Styles that sum, on settlement of accounts, and afterwards promised to pay it to the defendants. This was rejected by the auditor. It is not very obvious why the defendants were not competent witnesses of these facts, but there was no error in rejecting them, if the facts, when shown, were incompetent. To bind Phalan to any such contract to the defendants, one of two things must appear. Either Stiles must have assigned his debt to the defendants, or released the plaintiff therefrom; otherwise the plaintiff remained liable to Stiles, and his promise to the defendants was entirely nudum pactum, Neither of these was offered to be shown. The same facts were offered to be proved by one Chambers, who appears to have been rejected on account of supposed interest in the event of the suit; but the report shows no interest. It appears that he gave the plaintiff a guaranty that the defendants would pay him for spinning, but it does not appear that the same spinning constituted any part of the plaintiff’s account, now in suit. As the facts offered to be proved by him were insufficient to sustain the defendants’ cláim, as already shown, his being rejected was of no importance. All the other charges appear to have been settled, on the merits, by the auditor. Judgment affirmed,