Cruse v. Findlay , 38 N.Y.S. 741 ( 1896 )

BISCHOFF, J.

The plaintiff performed certain work upon an experimental device required by one Blanchard, an inventor, and the defendant was sought to be charged with the cost, upon his verbal promise to assume the debt. From the evidence, the fact that there was such a promise, and that the plaintiff performed the work in reliance upon it, appears quite sufficiently; and, while there was a conflict of testimony upon the point, the justice was well authorized to credit the plaintiff’s version of the transaction. The fact that the promise was oral does not affect the plaintiff’s right to a -recovery, since the evidence shows the agreement to have been an original one, and not a collateral assumption of another’s debt. Furthermore, the statute of frauds is not available to the defendant, since it was neither pleaded in defense, nor alluded to upon the trial. Crane v. Powell, 139 N. Y. 379, 34 N. E. 911. There is also sufficient evidence that the work was performed according to the plaintiff’s contract, and we cannot say that the preponderance of the proof, upon the conflict of evidence as to its actual terms, is with the defendant. It is true that Blanchard, called as a witness for the plaintiff, testified to an agreement which was contrary to that shown by the plaintiff’s own testimony as to the requirements of performance; but the matter thus in dispute was directly at issue in the case, and therefore the plaintiff was not bound by, nor precluded from contradicting, the adverse testimony of his own witness. 29 Am. & Eng. Enc. Law, 812, and citations.

It is claimed that evidence as to former transactions, or of a nature similar to that in suit, was improperly admitted; but it appears from the record that the admission was conditional upon the evidence being properly connected,, and the defendant not only failed afterwards to move that it be stricken out, but himself brought out testimony upon the point in explanation of the evidence in question.

We find no prejudice to the appellant in the rulings upon the trial, nor in the final disposition of the case, and the judgment therefore should be affirmed, with costs. All concur.