Howes v. McCrea , 1902 Pa. Super. LEXIS 415 ( 1902 )

Opinion by

William W. Porter, J.,

If the learned judge in the court below was right in holding that this action was based wholly upon an order given by Stabler on McCrea to the legal plaintiffs in this action, and that the offer of proof made was in support of a case so based, he was right in rejecting the offer and in entering a nonsuit, inasmuch as the order was not accepted in writing by McCrea, as required by the act of May 10, 1881. The appellants claim, however, that the action is not based upon the order. They call attention to the statement of claim which asserts the right to the sum of $800, held by McCrea “ to and for the use and behoof of them the said plaintiffs.” The first part of the offer was to show the giving of a written order by Stabler on McCrea in favor of the legal plaintiffs in the sum of $800, with direction to charge it to the account of Stabler, and that the plaintiffs presented this order to McCrea who verbally promised to pay it. But the offer goes further than this. It proposes to follow with proof that the sum of $800 was allowed to McCrea by Stabler in the settlements of suits, and that those $800 were left in the hands of McCrea as a trust to be paid to the plaintiffs. Where there is a transfer of a fund to the promisor for the payment of a debt, he is liable on his verbal promise made to the owner of the fund; or if property charged with the payment of the debt be transferred to him on his promise to the vendor to pay the debt, he is liable: Fehlinger v. Wood, 134 Pa. 517; Townsend v. Long, 77 Pa. 143; Stoudt v. Hine, 45 Pa. 30 ; Maule v. Bucknell, 50 Pa. 39; Adams v. Kuehn, 119 Pa. 76. It is also true, that, where a fund is by a debtor placed in the hands of a third party to be applied to the payment of a debt to a creditor, such creditor, although not present when the arrangement was made, may bring suit against the holder of the fund: Justice v. Tallman, 86 Pa. 147; Townsend v. Long, supra; Delp v. Bartholomay Brewing Co., 123 Pa. 42. The offer of proof in the present case is in substance to show that Stabler and McCrea came together in the settlement of certain suits, that Stabler in his action gave credit to McCrea for $800, represented by tbe order given by Stabler on McCrea to the plaintiffs in the present action ; that McCrea asserted (in his affidavit of defense in the suit by Stabler), that he was entitled to such a credit as against Stabler; that a settlement was made between Stabler and McCrea on the basis that $800 should be retained by McCrea to pay the plaintiffs here. If this agreement was arrived at between Stabler and McCrea, it would be the equivalent of a deposit with McCrea of a sum of money to meet the claim of the present plaintiffs for $800. If the present plaintiffs can prove, under the offer, the making of such an agreement between Stabler and McCrea, they would make out a prima facia right to recover from McCrea. It is urged, however, that the offer is not to show a promise by McCrea to hold the fund and that the statement of claim avers only that the credit was given by Stabler to McCrea in the belief that Mc-Crea had paid the order given to the present plaintiffs. It is not necessary that the plaintiffs should prove an express promise on tbe part of McCrea to pay them subsequent and pursuant to the alleged agreement made between him and Stabler. It is sufficent if the plaintiffs can prove the existence of an agreement between Stabler and McCrea that the latter should hold the fund in his hands and apply it to the claim of the plaintiffs. Certainly McCrea cannot now shut out proof of the alleged agreement on the ground that it was made by Stabler in the mistaken belief that the application of the fund had been already made by McCrea. McCrea received the credit in the settlement as if the fund had been applied. He still holds the fund (if the agreement be as alleged by the plaintiffs) for the purpose to which he agreed that it should be, or should have been, applied. So far as Stabler is concerned, his agreement to the application of the fund would be shown by the terms of settlement proposed to be proven. The order itself which was offered to be put in evidence was admissible, in connection with the other proofs that were to follow, to show the existence and amount of the claim against Stabler, to which the fund was to be applied by McCrea under the alleged agreement of settlement made between Stabler and McCrea. The inclusion in the offer to prove an alleged promise by McCrea to pay the order was not fatal to the whole offer. True such a promise did not tend to create any legal liability on the order because it was not a written acceptance. But if the other proofs showed that Stabler and McCrea had in fact agreed that the latter should hold a fund to meet the order, the promise might become enforceable. Since it has been held “ that a promise to pay the debt of another is not within the statute of frauds where the promisor has money or property of the debtor placed in his hands for the purpose of such payment, or where in any other way an agency or trust arises which involves a duty to pay: ” Howarth v. McClure, 149 Pa. 170. The admissibility of the proof of the promise of McCrea could only be determined after the exhibition of the other proofs proposed to be submitted under the offer. It will be understood that we are here passing only upon the offer of proof. We cannot know what facts will be exhibited when proof is attempted under the offer. It may be on the retrial that the facts will not warrant the application of the principles herein discussed. All that we hold is that the terms of the offer were broad enough to open the door to proof of an agreement between Stabler and McCrea under which the latter is alleged to hold a fund applicable to the payment- of the plaintiff’s present claim.

The judgment is reversed and a new venire awarded.