#### The Meriden Britannia Company, plaintiffs and respondents, *vs.*Godfrey N. Zingsen, defendant and appellant.

1. Two cotemporary written undertakings, signed by the parties, by one of which the plaintiffs promised the defendant to *“ give up*” a certain claim held by the former against a third person, upon the delivery by the latter, of a certain amount of a specified kind of goods “ *as per agreement,"*and by the other the defendant promised to-deliver to the plaintiffs, such goods *“to settle"*such claim are to be construed together, as constituting a purchase by the defendant of such claim, and the undertaking signed by him is not to be construed alone as a promise to pay the debt of another'within the statute of frauds, and therefore void as not expressing a consideration.

2. The agreement by the plaintiffs to sell such claim, was a sufficient consideration for the defendant’s promise to deliver such goods, and the delivery by the latter of part of the price would "have made the sale good within the statute of frauds, without any agreement in writing.

8. Proof of the execution of such agreements and delivery of such goods only does not render the contract proved so far a variance from the contract set out in the complaint, which was one by the plaintiffs to sell their claim against the third party in question and *release Mm from all liability to them*therein, as to ' entitle the defendant to a dismissal of the complaint. Such an allegation of a release from all liability *to the plaintiffs*is a necessary consequence of a sale by them of the claim, and is not a variance as to the consideration proved.

(Before Robertsok, Oh. J. and GUrvih, J.)

Heard November 15,1866 ;

decided February 11, 1867.

This is an appeal from a judgment entered upon the report of a referee, in favor of the plaintiffs, against the defendant.

The complaint alleged, that on the 31st of January, 18615 L. H. Mattison owed the plaintiffs $1625 for goods, when it was agreed between the plaintiffs and the defendant, that the plaintiffs *would sell*the said demand to the defendant and *release*Mattison from *all liability*to the plaintiffs thereon, and the defendant Would furnish and deliver to the plaintiffs, silver plated goods, consisting of plated' forks and spoons, of " a value and at a price agreed upon, per dozen, equal to the indebtedness ; said goods to he delivered in February and March, *1861;*that said debt was sold and Mattison released and discharged from liability to the plaintiffs thereon ; that Mattison assented to the arrangement, and promised to pay *313the debt to the defendant, that goods to the amount of $1235.97 were delivered on said agreement, between the first of March and the first of July, 1861; no other goods were delivered ; demand has been frequently made for the balance of the goods, but the defendant neglected and refused to comply with the demand and deliver said goods; that goods amounting to $440 remained due, &c.

The answer denied all the allegations contained in the complaint, except that it admitted the defendant did deliver to the plaintiffs, goods to the amount of $1235.97 to apply upon the alleged debt due from Mattison to the plaintiffs. The defendant further alleged therein that he did deliver to and for the plaintiffs more than sufficient in amount and value to pay the debt of Mattison, and denies that $440 is due the plaintiffs. It was shown, upon the trial, and the evidence establishes, that on the 31st of January, 1861, the plaintiffs had a debt against Mattison of about $1500, which they were desirous of securing, and were pressing him for payment; that Mattison was unable to meet the demand at once, and for the purpose of securing its payment to the satisfaction of the plaintiffs, he procured the defendant to assume and agree with Mattison and his father to assume his (Mattison’s) debt to the plaintiffs, for $1000 in cash, to be paid by the father to the defendant, and the notes of Mattison for the balance, which notes and money the defendant afterwards, received in full. In pursuance of this understanding between the defendants, Mattison and his father, and for this consideration, the defendant agreed with the plaintiffs, through Wilcox, the agent, to furnish and deliver to the plaintiffs, in the months of February and March, certain plated ware at a price agreed on, to settle and purchase the debt held against L. H. Mattison. The plaintiffs agreed to “ give up ” their claim against L. H. Mattison to the defendant, as soon as he delivered to the plaintiff the amount in the wares as per agreement. These two agreements were in writing, and dated on the same day. Mattison was released by the company from all liability to them, so far as such a paper not under seal could do so. *314The quantity of goods delivered to the plaintiffs, under this arrangement, amounted to $1225.19. Mattison, as was agreed with the defendant, was to receive from him and ship for him the goods to the plaintiffs. A demand was made for the balance of the goods, and the defendant neglected to deliver the remainder, whereupon this action was brought to recover their ■ value, and the referee to whom the issues were referred, gave judgment for the plaintiffs therefor.

*G. Bainbridge Smith,*for the appellant, defendant.

I. The complaint is unproved in its entire scope and meaning.

1. The complaint alleges a sale and transfer, of a debt against one L. H. Mattison, and, on such sale and transfer, a promise to pay on the part of the defendant.

2. The evidence shows that the whole transaction was on a written contract between the parties, as follows :

*“*This is to certify that we agree to give our claim against L. H. Mattison up to Gr. N. Zingsen as soon as he has delivered to us the amount, at 70 per cent discount, in spoons and forks, as per his agreement.

Meriden Britannia Company,

H. C. Wilcox.

New York, Jan’y 31, 1861.”

“ New York, Jan’y 31, 1861.

I agree to furnish to the Meriden Britannia Company an assortment of plated forks and spoons, per L. H. Mattison’s list, at 70 per cent discount, to settle claim held against L. H. Mattison. To be delivered in the months of February and March. [Then follows the quality.]

G-. N. Zingsen.”

3. The facts do not sustain the complaint; and, besides, the action could not be maintained without averring in the complaint an offer to assign the debt of Mattison, and a readiness and willingness so to do. *(Lester*v. *Jewett,*1 *Kern.*
      *315453.) The defendant moved to dismiss the complaint on that ground.

4. Where the complaint is unproved in its entire scope and meaning, it should be dismissed. *(Cottrell*v. *Conklin,*4 Duer, 45. *Texier*v. *Gouin,*5 *id.*389. *Burgher*v. *Columbian Ins. Co.*17 *Barb.*274. *Hempstead*v. *N. Y. Central R. R.*28 *id.*485. *Gasper*v. *Adams, Id.*441. *Saltus*v. *Genin,*3 *Bosw.*250, 639. *Moore*v. *McKibbin,*33 *Barb.*246. *Whittaker*v. *Merrill,*30 id. 389. *Lyon*v. *Blossom, A Duer,*318. *Code of Proced.*§§ 170,. 171.)

II. The contract between the plaintiffs and defendant is in writing; the two papers form part of one single transaction, and embrace one undivided contract. *(Rawson*v. *Lampman,*1 *Seld.*461;) and being clear and unambiguous, the referee erred by allowing it to be varied and contradicted by parol evidence. *(2 Abbot’s Dig. pr 661.)*

1. The defendant requested the referee to disregard all testimony which in any manner varied or contradicted the written contract between the parties.

2. The referee in his third finding, found, as matter of fact, that “ a verbal agreement was made between said Mattison and the defendant, Godfrey N. Zingsen, that if. said Zingsen would settle the said debt with said plaintiffs, so that said debt could be released, the said Mattison would pay Zingsen. the amount thereof, as follows, viz : one thousand dollars in cash, and the balance in notes without indorsement.” And in the referee’s *fourth*finding, he finds ; “An agreement was *thereupon*made *in writing,*between the said plaintiffs and said defendant, as follows : ” and then sets it forth ; being the two papers before referred to.

3. The parol evidence was objected tó, and allowed under the defendant’s objection and exception.

4. The parol evidence and finding of the referee, was untrue in point of fact. The father of Mattison was not called as a witness. The notes spoken of by Mattison were produced by him, and Mattison- thought they applied to the Meriden account. He would not be positive. Zingsen swore positively *316that they had no reference to that matter. The referee refused to allow the defendant rto show that Mattison was indebted before and since the 31st of January, 1861. The notes were dated on the 14th March, 1861, and it is not pretended they were antedated. The fifth finding is equally without foundation, in respect to the notes : and particularly as to -the time they were given. Whether the parol testimony was true or false, it should not have been admitted. A written ■ instrument can no more be varied or contradicted in respect to its legal effect, than it can he in respect to its express terms. (2 *Abb. Dig. p.*661. *Thompson v. Ketcham, 8 John.*189. *Renard*v. Sampson, 2 *Duer,*285.) Nor can contemporaneous parol stipulations, contradicting or varying the legal effect of a written contract in evidence. *(2 Abb. Dig. 661. Johnson*v. *McIntosh,*31 *Barb.*267.) The parol evidence, was intended to be and was admitted by thé referee for the sole purpose and object of not only varying, but contradicting the written contract between the parties.

1. The contract states that when the defendant shall have paid the'plaintiff the amount of Mattison’s debt, that debt shall be given up to the defendant.

2. The complaint alleges, in consideration that -the plaintiffs would sell said demand to the defendant and release Mattison, the defendant agreed to furnish certain goqds therein mentioned ; and that the plaintiffs, then and there sold and assigned said demand against Mattison to the defendant.

3. The parol evidence was to deprive the defendant of the very debt which he bought, and the sole consideration expressed in the contract for which he agreed to deliver' the goods to the plaintiffs. ■ ■

It is -submitted that the foregoing proposition, of law is incontrovertible, and that the report of the referee must be set aside.

III. The written contract between the parties falls within the statute of frauds, as it expresses no consideration.

1; The defendant agrees to furnish to the plaintiffs- certain merchandise to settle the claim they have against one Matti*317son, and the plaintiffs, without consideration expressed in the contract, agree that as soon as the defendant shall have delivered the amount of such debt in merchandise, they will give up to him the debt against Mattison. This is the whole agreement.

2. The debt against Mattison was not by the contract extinguished or impaired. There is no consideration of benefit nor hqrm, nor any shift of the indebtedness. *(Kingsley*v. *Balcome,*4 *Barb.*131. *Stern*v. *Drinker,*2 *E. D. Smith,*401. *Fay*v. *Jones,*18 *Barb.*340.)

3. The statute declares that the promise to pay the debt of a third person must not only be in writing, but is absolutely void unless it expresses a consideration. (2 *R. S.*135, § 2.) *Mallory*v. *Gillett,*21 *N. Y. Rep.*412.)

*(a.)*The modification of the statute by the act of 1863, (see *Sess. Laws,*1863, *p.*802,) cannot affect the contract between the plaintiffs and defendant made in 1861. *(Berley*v. *Rampacher, 5 Duer,*183. *Calkins*v. *Collins,*3 *Barb.*305.)

*(b.)*Nor does it affect the question of the defendant’s liability that he paid part, as alleged, of Mattison’s debt to the plaintiffs. *(Baldwin*v. *Palmer,*10 *N. Y. Rep.*232.)

4. Where the statute of frauds requires the consideration to be expressed, the omission to state it cannot be supplied by parol. *(Brewster*v. *Silence,*8 *N. Y. Rep.*207. *Draper*v. *Snow,*20 *id.*331. *Hall*v. *Farmer,*5 *Denio,*484. *S. C. affirmed,*2 *N. Y. Rep.*553.)

5. The referee’s opinion is founded upon a false basis. He allows parol evidence to vary and contradict the written contract, and upon that evidence "reasons the case in favor of the plaintiffs.

IY, If the contract in writing between the plaintiffs and defendant is to be regarded at all, the action cannot be maintained, upon another ground. The plaintiffs agreed, so soon as the defendant paid the amount of Mattison’s debt in merchandise, it was to be given up to him. The plaintiffs allege in their complaint it was an absolute sale and assignment of the debt against Mattison *;*but its obvious purport is a sale and *318transfer of the Mattison debt so soon as the defendant shall have paid for it. In such case, the plaintiffs must not only aver in their complaint that they had assigned the debt, or offered to assign it, and of their being ready and willing to assign, but *must prove that they had assigned or offered to assign it.*The complaint contains no such allegation, and there was no proof offered in respect to it. *(Dunham*v. *Pettee,*8 *N. Y. Rep.*508. *Lester*v. *Jewett,*1 *Kern.*453. *Payne*v. *Lansing,*2 *Wend.*525. *Johnson*v. *Wygant,*11 *id.*48. *Kelley*v. *Upton,*5 *Duer,*336.)

V. If the plaintiffs released Mattison from the debt, so that they could not perform their written contract with the defendant, then the defendant was entitled to recover the whole amount he actually paid under the contract.

VI. It is submitted that the judgment should be reversed.

*W. Gleason,*for the respondent.

I. The referee’s findings of fact are abundantly sustained by the evidence. The testimony of George R. Curtis shows that Mattison was indebted to the plaintiffs, on the 31st of January, 1861, in the sum of $1580.85. It is admitted that the defendant executed and delivered to the plaintiffs the agreement contained in the case. The plaintiffs, at the same time, released Mattison from his liability to them. Mattison agreed to pay the defendant $1000 cash,- and give his notes for the balance. The $1000 cash was paid. The notes were given to the defendant and paid by Mattison. The defendant delivered goods to the plaintiffs of the value of $1225.19, and no more. Demand was made for the balance, November 21, 1861. Upon these facts the plaintiffs were clearly entitled to recover the amount reported by the referee.

II. The pretense of the defendant that Mattison acted as the agent of the plaintiffs, in receiving and shipping the goods, and that the defendant delivered to him, as such agent, goods sufficient to pay the debt, is entirely unsupported by the facts. The goods were sent to Mattison for the convenience of the *319defendant. The defendant instructed Mattison, in each instance, what goods to send to the plaintiffs.

III. The promise of the defendant to pay the debt due from Mattison to the plaintiffs, was not void by the statute of frauds. There was no necessity for reducing the agreement to writing. The transaction, in brief, was this : Mattison, the original debtor of the plaintiffs, agreed to pay the defendant $1580.07 cash, in consideration of the defendant’s agreement to pay the plaintiffs the same amount in goods of his own manufacture. This agreement is clearly valid, within the cases of *Mallory*v. *Gillett,*(21 *N. Y. Rep.*412,) and *Skelton*v. *Brewster,*(8 *John.*376.), Mattison placed funds in the hands of the defendant to pay the debt, in consideration of which the defendant agreed to pay it. Such a promise was never held to be within the statute of frauds. The plaintiffs said to the defendant, in substance: “You shall have our claim against Mattison if you will deliver to us goods, at certain fixed prices, .to the amount of the debt.”

IV. The referee committed no error in receiving or rejecting the evidence. But four objections were made during the trial, and the correctness of the referee’s rulings upon them is so obvious as to require no comment. The only question upon which there was any material conflict of testimony was, whether -the defendant had delivered sufficient goods to the plaintiffs to pay the debt. This branch of the defense rests entirely upon the testimony of the defendant; and, besides being contradicted by Mattison, Wilcox and Curtis, he fails to prove the delivery of more than $1200 worth of goods, after deducting the 70 per cent from Mattison’s list of prices.

The referee’s findings of fact are sustained by the evidence, and are conclusive.

By the Court,

Garvin, J.

It is contended, on the part of the defendant, that this arrangement with the plaintiffs is within the statute of frauds, and, therefore, void, and cannot be enforced. It cannot be disputed that the proof shows a new and distinct consideration was received by the defendant *320from Mattison, in money and notes, and a customer for his wares, at his own price, bringing the case within the principles laid down in the case of *Mallory*v. *Gillett,*(21 *N. Y. Rep.*412,) clearly excluding a case, with such a consideration, from the effect of the statute. But it is contended that no consideration of any kind was expressed in the paper subscribed by the defendant, nor was any such consideration averred in the complaint. Upon these grounds, and also that the complaint contains a different contract from the one proved, and that the complaint is unproved in its entire scope and meaning, the defendant moved to dismiss the complaint.

It is quite clear that no consideration is stated in the agreement actually subscribed by the defendant; but, if we are to take the two papers, executed on the same day, as one agreement, and they are to be construed together, then it is plain that the plaintiffs were to give up their claim against L. H. Mattison to the defendant, when he delivered them the amount in certain wares described therein. It is, perhaps, fair to regard them as one contract, and this, for most purposes, is the legal rule. *(Rawson*v. Lampman, *5 N. Y. Rep.*461.)

The consideration moving from the father of Mattison, (the primary debtor,) to the defendant, cannot be relied upon to sustain the complaint as a consideration, within the statute of frauds, for the written contract, for two reasons : 1. That no new consideration can be imported into the agreement to sustain it; and 2. That it varies from the consideration set out in the complaint. If no consideration is expressed in a written promise, none can be supplied by parol, for the statute of frauds requires it to be expressed. *(Brewster*v. *Silence,*8 *N. Y. Rep.*207.) This new and outside consideration can-, not be inserted in the paper subscribed by the defendant, for no consideration is expressed therein ; nor can it be added to the consideration contained in the paper subscribed by the plaintiffs. In either view of the case, the consideration cannot, in any way, be resorted to to uphold the written agreement between the parties, if it is to be regarded as a promise *321
      *to*answer for the debt of Mattison, and, if so, neither can it be resorted to to uphold the complaint.

But there is another view of the case to be taken, which is, that the action in this case was not upon a promise, by the defendant, to pay Mattison's debt, but a purchase of the debt of Mattison from the plaintiff's by the defendant. If the defendant, in fact, bought the debt against Mattison, then the statute of frauds, *(sub. 2 of*§ 2,) has no application to the case. Though the effect may ultimately be to pay the debt of another, the contract made created a new debt—the defendant’s own—which he was bound to pay. If not paid, it could be enforced against him by action, as well as if the consideration, instead of being Mattison’s debt, had been any other personal property, sold by the plaintiffs to him, to be delivered'on paying therefor at a future day.

The complaint proceeds on a contract of sale to the defendant of the debt against Mattison, and a release of Mattison from all liability to the plaintiffs thereon, and avers a promise by the defendant to pay in plated ware. The evidence discloses one writing signed by the company, promising to “ *give up’’*the claim to the defendant on payment of the amount, and another signed by the defendant, in which he agreed to deliver within a certain time the goods *in, payment to settle the claim*against Mattison. The defendant did deliver goods in pursuance of, and upon, the contract, to the plaintiffs, to the amount of $1225.19. These facts are proved, and substantially conceded. It is also in proof that a demand was made for the balance of the goods. Was this a purchase by the defendant of the claim held by the plaintiff against Mattison ?' If so, the plaintiffs’ cause of action is made out. It must be conceded that any release growing out of such writing not being under seal, and without payment of the debt, was worthless and of no effect. It may, therefore, be regarded as out of the case, and is not necessary to sustain the action, provided the transaction between the parties was a sale of the debt to the defendant. It will be observed that the writing signed by the defendant, defines the object of the delivery of *322goods to the plaintiffs to be to *settle a claim*against L. H. Mattison ; and the other paper signed by the plaintiffs specifies what the plaintiffs are to do with the debt, in these terms : “We agree to give our claim against L. H. Mattison up to (the defendant) as soon as he has delivered to us the amount in spoons and forks as per his agreementnot that the plaintiffs will satisfy, receipt, or extinguish Mattison’s claim, but will give it up to the defendant, who can hold it as a voucher or evidence of Mattison’s indebtedness to the defendant, or, in case he does not pay, enforce it against him. I think the fair interpretation of this transaction is that the defendant agreed to buy this demand, and for it agreed to deliver merchandise to the amount of Mattison’s debt. It is true the word *sell*is not used, but the defendant does in effect sell by agreeing to deliver, at a certain time, and does deliver, a part of the property, which is accepted by the plaintiffs, and does in effect buy the debt of Mattison. This view of the case brings it within the complaint, without doing any violence to the evidence. If there was a sale of the debt to the defendant, that was a sufficient consideration for the promise, without the release of the debt to Mattison, to sustain the the action. One valid consideration is as good as two. The omission to prove both is not such a variance as to defeat the action.

Again, the transaction was in writing and subscribed by the parties and, as is contended for by the defendant, is one undivided contract, and made valid by the statute as reduced to writing. (2 *R. S.*140, § 3, *sub.*1.) There was a delivery and acceptance. (2 *R. S.*140, § 3, *sub.*2.) It was not necessary the delivery and acceptance should have been at the time the contract was made. *(McKnight*v. *Dunlop,*1 *Seld.*537.) It was sufficient if any part of the property was delivered and accepted in pursuance of the contract, even if the contract had been verbal, to have made the contract valid within the statute. It cannot be successfully contended that it was necessary to be given up to the defendant when he delivered the goods. This is entirely consistent with the complaint, *323which is that the plaintiffs would sell, and did sell and assign the demand against Mattison ; but there is no averment that they delivered. It is objected that much of the evidence received by the referee, contradicted the written agreement between the parties. I cannot see how. The evidence principally shows the consideration that moved the defendant to action, and induced him to purchase this demand, and that long before this action was brought, he -received the whole amount he agreed to pay for this demand in money, from the Mattisons, father and son. The one gave him $1000 in cash, and the other paid him the notes he gave for the balance.

The judgment should be affirmed, with costs.