Washburn-Crosby Co. v. Budzowski ( 1924 )

Argued April 24, 1924. This is an appeal from the refusal of judgment for want of a sufficient affidavit of defense. Plaintiff declares for the price of flour alleged to have been sold and delivered to defendant. The affidavit denies the sale and delivery as averred in the statement and alleges that the flour was sold and delivered to the Peerless Baking Company, of Youngstown, Ohio, and that, at plaintiff's request, before delivery of the flour, defendant "orally guaranteed the payment of the purchase price ...... if not paid by" that vendee; and that judgment should be entered in his favor. He added other averments to which we need not now refer. If the allegations mentioned are true, (a) he neither bought nor received the flour; and (b) he cannot be compelled to pay the debt of the vendee because his promise was not in writing, as required by the statute of frauds: Act of April 26, 1855, P.L. 308; Nugent v. Wolfe, 111 Pa. 471,480.

Judgment affirmed.