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6 Lancaster B. 1 (1874-1875)

handle is hein.statereports/lancb0006 and id is 1 raw text is: Three Dollars a Year in adeance. Ven Uet. per l.i.ber. VOLUME VI. -Publication Office, No. i T No'rth Duke e Street o east er, Pa. NUMBER 1. SUPREME COURT OF PENN'A. the statute of frauds, 26 April, 1855, S. S. 1. Bowers was then becoming slow, and there is This alternative was thirly presented to the jury no probability that they would step out of ESHEL11AN & HERR vs. BEECHER & HARNISH. in plain language, by the learned judge below. their agreement and judgment to assume a The only question, therefore, is, whether the new and worse relation; besides, there was a A contracts to furnish B articles of merchandize, B has an arrangement with C to receive means of pay- evidence was sufficient to establish the change manifest reason for their expressions to Har- ment, C urges A to hurry up the articles and says to of relation, and make the defendants the prin- nish to hurry up the castings. The eight A, he will settle for the balance after they are de- cipal debtors. hundred rakes were to be finished by the 1st livered; this is not sufficient to-change the relation Bowers says, referring to the meeting to ob- of May, and this was the 9th of April. The between A and B and put A and C in privity of con- tain the further advance of $800, They (de- season for making sales was rapidly approach- tract, so as to make C responsible to A on a new fendants) gave him the note and told him to ing and the rakes should be in the market. contract. This is at best but a promise to pay the hurry on with the rest of the castings, to finish They were straining a point in raising the debt of another, and not being, in writing is iN ithincstn, the statute of frauds. the eight hundred rakes. I I heard them $800 for Harnish, and nothing was more natu- tell Harnish to hurry up the balance, again, ral when they were doing him a favor than to A, after he discovers this arrangement between B and y C, in his book of entiies adds to the charg already at that time about two-thirds of the castings say to him now hurry up and we will settle made against B,-& Co. Tnis book is not adaissi- were finished. I ordered the goods to make the the balance, without intending to change their ble as evidence to prove a contract between A and C. rakes, and they paid for them when they had position in the case. Their conduct was en- Error to the court of Common Pleas of Lan- the money. I sold the rakes and gave them tirely consistent with existing relations, while caster county. orders to pay. Harnish testified to the same there was nothing to justify the conclusion caster couy. a, E aconversation as to the advance of $800 to that they became the principal debtors of the D.Bowes. He says before we parted there, plaintiffs. There was no sufficient evidence Eshleman for Plaintiffis in Error. Bwis l as eoew atdtee they said we should hurry up the balance of therefore to take the case out of the statute And. Al. Frantz for Defendants in Error. the castings for the remainder of the rakes; requiring a writing to answer for the debt in Opinion delivered May 18th, 1874, by AG- they would settle for the balance after they default of another. NEW, C. J. were delivered. Again, they said I should We think there was error also in admitting The castings for which the plaintiffs claim hurry and deliver all the castings, and when the book of the plaintiffs as a book of original payment were furnished to A. K. Bowers and they were all delivered they would settle and entries, to prove the charges for the castings. not to the defendants; Bowers was the manu- pay for the balance. Now in all this there It was not competent evidence of the perform- facturer of the horse-rakes, and the plaintiffs was not a word expressing or even indicating ance of a special contract with Eshleman & began to furnish the castings for them before a change of the relation between the plain- Herr, and could have been received only as a Bowers entered into the contract with the de- tiffs and Bowers, or that the defendants took memorandum of the items, to refresh the fendants to advance him money. That con- the debt upon themselves as their own. When memory of the witnesses. tract gave the latter no control over the rakes. all was delivered they would settle and pay for Judgment reversed. Bowers was to sell them and hand over the the balance. Delivered to whom? Clearly to proceeds only in payment of their advance. Bowers. They would settle and pay what? Orpians' Court of Lancaster County. The plaintiffs knew nothing of this arrange- Clearly Bowers' debt. As a promise to pay ment until Bowers exhibited the article to Har- it was entirely consistent with their own rela- nish to show him that he would be provided tion to Bowers to advance him money to finish The Orphans' Court is a limited juilsdiction, and a with the means of payment. They chargyed the eight hundred rakes. Harnish had not matter instituted therein does not draw with it every- thing connected by the remotest ielation, so as to the castings to A. K. Bowers, and it was only refused to continue to furnish the castings to give the Court jurisdiction in additional and accl- as Harnish testifies, after hQ knew Messrs. Bowers. Then the plaintiffs gave their own dental inquiry. It has no jurisdiction to settle claims Herr & Eshileman were in combination with interpretation to the promise of the defend- arising between debtor and creditor dependent upon A. K. Bowers, he then added the & Co., to the ants. They not only continued to furnish the disputed facts. entries of the charges made and delivered for castings to Bowers, but they charged them to Exceptions to auditor's report. the horse-rakes. It is evident he thought the him and Company. It is evident HIarnish T. E. Franklin and N. El1maker for excep- agreement constituted Bowers and Eshleman thought the liability of the defendants grew tions. & Herr partners. Then it was not until the out of their agreement with Bowers. It was 9th of April, when he had already finished this combination, as he terms it, which caused about two-thirds of the castings, he had the him to add the sign & Co. to the charges in Opinion delivered November 13th, 1873, by conversation with the defendants out of which the book, and to continue the charges in that HAYES, A. L. J. this action grew. After some reluctance Eshle- form. Joseph Frantz and Sem Eby, executors of man & Herr advanced for Bowers 9800-in But when a change of relation is alleged for the last will and testament of Jacob Frantz, their note, and took his receipt, referring to the purpose of taking the case out of the stat- deceased, filed their account, which was pre- their agreement. It was at this time the al- ute of frauds, it lies upon the plaintiff to prove sented and confirmed nis! in the Orphans' leged promise was made. Up to this moment it is clear the relation of debtor and creditor between Bowers and the plaintiffs existed, and not between the defendants and them. How was the relation changed? The burthen of proving a change of relation clearly and satis- factorily lay then on the plaintiffs; ir not so proved, Bowers continued to be their debtor and the promise of the defendants was to pay his debt, and not being in writing, fell within it by clear and indubitable evidence. The Court, September the 18th, 1871; and April promise here must be attributed to the exist- the 27th, 1872, the court on motion of D. G. ing relations of the parties, in which Bowers Eshleman, esq., appointed Amos Slaymaker, was the purchaser of the castings from lar- esq., auditor, to distribute the balance in the nish & Beecher, and Eshleman & Herr were hands of the accountants, to and among those mere loaning creditors of Bowers, under their legally entitled to receive the same. written agreement and judgment against him. The testator, Jacob Frantz, died without When the latter advanced the $800, they were issue, but left a widow, who, dissatisfied with reluctant and told Harnish they had advanced his will, elected not to take under it, and by about all they were to under the agreement. her petition, filed June 3, 1871, claimed her Ij X1zncastr WILLIAM B. WILEY, PUBLISHER. MAY 30, 1874.

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