Duncan v. Shaw , 1901 Pa. Super. LEXIS 288 ( 1901 )

Opinion by

William W. Porter, J.,

Duncan & Company, the plaintiffs, purchased the book bindery and printing business of Gundlach & Gale. The latter had previously been doing binding work for Shaw Brothers, the defendants. Duncan & Company desired to secure this work. In the negotiations looking to this end it was found that Gundlach & Gale were indebted to Shaw Brothers in the amount of a certain promissory note upon which Shaw Brothers were indorsers and which was held by a certain bank. According to the defendants’ testimony, Duncan & Company agreed with Shaw Brothers to become responsible to the latter for the amount of this note which was to be charged to the former in monthly instalments of $25.00. In consideration of this, Shaw Brothers agreed to give certain of their work to Duncan & Company. The parties continued under this alleged agreement until the indebtedness of Gundlach & Gale to the bank was discharged by Shaw Brothers. Duncan & Company sued for payment of the amount due for work they had been doing for Shaw Brothers. Shaw Brothers replied with a bill for printing work done for Duncan & Company plus the amount of the Gundlach & Gale note, together making an amount in excess of the claim of Duncan & Company. The question which went to the jury was, whether the agreement of Duncan & Company, asserted by Shaw Brothers and denied by Duncan & Company, was in fact made. The jury found that it was made and rendered a verdict for Shaw Brothers for the amount in which their claim exceeded that of the plaintiffs.

It is said that the contract was without consideration because there was no proof that the work of Shaw Brothers was to be given to Duncan & Company for a specified time or for a certain amount. The contract set up was apparently not an advantageous one to the plaintiffs, but the jury have found that it was made, and the fact that it was founded upon what appears to be an unprofitable consideration, furnishes no ground to overturn the verdict. The appellants also contend that the alleged contract was to pay the debt of a third party and, being in parol, was in violation of the statute of frauds and therefore unenforceable. The main purpose of the promise given by Duncan & Company to pay the defendants the amount of the debt due by Gundlach & Gale was not that the debt should be paid but that the plaintiffs should secure the business of Shaw Brothers. The rule is well settled, that whenever the main purpose of the promisor is not to answer for the debt of another but to sub-serve some purpose of his own, his promise is not within the statute: and this, although the performance of it may incidentally have the effect of extinguishing the liability of another: Baxter v. Hurlburt, 15 Pa. Superior Ct. 541; Weber v. Bishop, 12 Pa. Superior Ct. 51, and cases cited, We are unable to find in the quotations from the charge any error in the submission of the case to the jury. No error was committed in the admission of the evidence complained of in the assignments. The offers were all in the line of supporting the agreement set up by the testimony for the defendants, to which the jury have given credence.

The judgment is affirmed.