#### Nelson D. Welsh, Respondent, *v.*Ada M. Jones and Helen M. Jones, as Executrices, etc., of John W. Jones, Deceased, Appellants.

Third Department,

May 7, 1913.

Statute of Frauds — promise to pay debt — consideration—pleading — statute not available on appeal.

Where plaintiff, at the request of defendant, paid the sum of fifty dollars, the balance due upon a promissory note given by defendant to plaintiff for goods sold and delivered, whieh note had been discounted at a local bank, and delivered the note to defendant on his express promise that on the following day he would deliver to plaintiff merchandise of the value of fifty dollars, there is a sufficient consideration for the promise and the agreement having been fully performed by the plaintiff, the defendant will not be permitted on appeal to urge the Statute of Frauds, even though it may have been available if pleaded and presented upon the trial.

Appeal by the defendants, Ada M. Jones and another, as executrices, etc., from a judgment of the County Court of Cortland county, entered in the office of the clerk of said county on the 9th day of October, 1912, affirming a judgment of the City Court of Cortland in favor of the plaintiff.

*Irving H. Palmer,*for the appellants.

*J. T. & C. H. Gardner [Charles H. Gardner*of counsel], for the respondent.

Woodward, J.:

The complaint in this action sets up two causes of action. The first of these is for goods and merchandise sold and *43delivered of the agreed value of fifty-seven dollars and forty-five cents, on which there had been a payment of thirty-one dollars and ninety-one cents. There does not appear to be any serious dispute as to this cause of action, though it is urged that it is overcome by the defendants’ counterclaim for cabbages, etc., sold and delivered to the plaintiff. The second cause of action is based upon an allegation that on the 1st day of October, 1909, the plaintiff delivered to the defendant a certain promissory note in writing, given by the defendant to the plaintiff, upon which there remained due and payable the sum of fifty dollars, in consideration that the defendant, on the following day, deliver to the plaintiff potatoes of the value of fifty dollars, namely, 100 bushels of potatoes at fifty cents per bushel. The theory of the plaintiff’s case is that the defendant, who died pending the appeal, and whose interests are represented by the present defendants, had given the plaintiff the note in question in payment for goods sold and delivered to the defendant, and that the same at the time of the agreement was held by a local bank, which had discounted the same; that the defendant was not prepared to pay the same, and that the plaintiff discharged the obligation to the bank, and delivered the note to the defendant, upon the promise of the latter to deliver the potatoes as alleged in the complaint. The judgment rests upon this foundation, and the defendant urges that, as the note was lawfully in his possession, canceled and discharged, it could afford no consideration for the agreement to deliver the potatoes. We are of the opinion that the plaintiff having paid the defendant’s obligation, at the request of the latter, there was a sufficient consideration for the promise, and that the agreement having been fully performed on the part of the plaintiff the defendant cannot be permitted on appeal to urge the Statute of Frauds, assuming that it might have been available if pleaded and presented upon the trial.

While there is some evidence in support of the defendant’s counterclaim, we are unable to discover any ground for a reversal of the judgment. The evidence was far from conclusive, and the facts having been found by the trial court, we are not called upon to disturb the judgment unless the decision *44upon the facts is against the weight of evidence, and this we do not find.

The judgment appealed from should be affirmed, with costs. All concurred.

Judgment affirmed, with costs.