Sewall v. Fitch

Curia, per Savage, Oh. J.

That the defendants, although agents for the Thames company, might contract on their own account, there can be no doubt; and the verdict of the jury has so found that fact. Whether the verdict be against evidence, is not a proper question upon this bill of exceptions. It must, therefore, stand, unless the judge erred in some of his decisions, which were excepted to.

To the competency of the witness, Greele, there is no objection, except his interest, and the question I apprehend, is not whether he might be interested in the contract *when made; but has he an interest in the event of this suit ? That he could have no possible interest, I. think is apparent. Those whom he represented, and on whose behalf his interest, if any, arose, affirmed the contract. If they recover, the witness makes nothing: if they fail, he loses nothing. Had the parties been reversed, perhaps it would have been different. Then, indeed, it might have been said, as in M'Brain v. Fortune, that if his principals were not bound, the agent would be. But that is an objection which cannot exist in the present suit.

The only question then, is, whether the contract was obligatory upon the defendants, within the statute of frauds; or as being a case not reached by that statute.

If this were a contract of which a note or memorandum in writing was necessary, to make it obligatory, it is clear to my mind, that no such memorandum was made as the *218 statute contemplates. It requires, “ that some note or memorandum in writing of the said bargain be made, and signed' by the parties to be charged by such contract, or their agents thereunto lawfully authorized.” Grreele, in this case, was not the agent of the defendant, any more than the plaintiffs would have been. He was neither an auctioneer nor a broker. Hor had he any authority whatever from the defendants to make a note or memorandum. (a)

'"'But, in this case, no memorandum at all was necessary. The contract was not for the sale of goods then in solido ; but for work and labor, in part, in the making of the articles to be delivered. A distinction in such cases is well settled, both in England and in this state. Formerly, the king’s bench held that the statute did not apply to ex-ecutory contracts. (Towers v. Osborne, 1 Str. 506 ; Clayton v. Andrews, 4 Burr. 2101,) In neither of those cases, however, was it necessary to rely upon such a principle. The first was for a coach, to be made; and the second for grain yet to be threshed. So that those cases were rightly determined, though upon a wrong principle, as has since been held, both by the common pleas and king’s bench. In Ron *219 deau v. Wyatt, (2 H. Bl. 63,) Lord Loughborough said) “The case of Towers v. Osborne, (1 Str. 506,) was plainly out of the statute, not because it was an executory contract, ag bas been said, but because it was for work and labor to be done, and materials and other necessary things to be found, which is different from a mere contract of sale, tc which species of contract alone the statute is applicable.” The same point was so decided in Cooper v. Elston, (7 T. R. 14,) where the king’s bench adopt Rondeau v. Wyatt, as sound law, admitting the distinctions there taken.

The principle of these two cases has been adopted by this court in Bennett v. Hull, ( 10 John. 364 ,) and Crookshank v. Burrell, ( 18 John. 28 .) The contract, in this case, was for the delivery of nails thereafter to be manufactured. It was therefore a contract, within the decisions cited, for work and labor and materials found; and so out of the statute.

I am of opinion that Greele was a competent witness, having no interest in the cause. That the contract was a valid one; and of course that the plaintiffs are entitled to recover. The motion for a new trial must be denied.

Hew trial denied.

So, on another branch of the statute:

In Dixon v. Broomfield, (2 Chit. Rep. 205,) Parke moved to set aside a non-suit. The action was brought on a guaranty, in a note addressed to, and left at the plaintiff’s; which stated that 11 Mr. Broomfield called to say that he will be responsible for goods delivered to Mr. K”

This was written by the clerk of the plaintiff in the presence of the defendant.

Lord Ellenborootjh, 0. J. Was there any evidence that the defendant assented to it?

Parke. Yes.

Bayley, J. Had he signed it?

Parke. No.

Lord ElIiENBorotoh; 0. J., said, that if this was evidence, no one could safely go into a shop; for any person there might write down a guaranty upon which he might be made liable to a large amount.

Rule refused.