ELTON vs. PERKENPINE.
A transfer of all of a firm’s assets to one creditor forms a good con* sideration for a promise by bim to pay tbe other creditors.
’ Tbe fact that the promisor paid some creditors is evidence of the-promise.
In such case a creditor of the firm can sue the promisor, even though there was no promise made to him personally.
Error to Common Pleas No. 2, of Philadelphia County. No. 123, July Term, 1884.
In July, 1S81, the firm of Steck & Paschall, engaged in the morocco manufacturing business, were indebted to various-parties to the amount of about $54,000. Anthony Elton being a creditor for about $51,000. In 1879 Steck & Paschall had borrowed $900 from H. B. Perkenpine and had made a. *417payment thereon, reducing the debt to $804.50. It was proposed that a new partnership was to be formed by Elton joining the firm and contributing his claim; and books were-prepared and schedules made out in pursuance thereof. However, instead of forming a new partnership, it was finally concluded that Elton should buy out the firm of Steck & Paschall, The stock account amounted to $27,194.29; bills receivable, $10,853.10. They executed a bill of sale for their stock and bills receivable to A. Elton, and further executed and delivered' two judgment notes amounting to $15,508.89 in favor of A. Elton; total, $53,556.28. Afterwards Perkenpine demanded payment of the $804.50 from Elton and upon his refusal to-pay, an action in assumpsit with common counts was brought, together with a special count- averring that Elton promised Steck & Paschall to pay this debt, and another that he promised Perkenpine to pay the debt. Elton plead non-assumpsit,, and further that he received no consideration for the alleged promises averred in the declaration; and that said promises as averred in the declaration were to pay the debt of another,, and not being in writing are not enforceable. Upon the triaL there was a dispute in the testimony whether or not Elton was to pay the debts of Steck & Paschall. Testimony of three, creditors of Steck & Paschall that their claims were paid by A. Elton was objected to; and the admission of this evidence forms the subject of the first three assignments of error. On-behalf of A. Elton the Court was requested to charge : “That unless a consideration passed to'the defendant he is not liable» the alleged promise not having been in writing, and not made at the date the debt of Steck & Paschall to the plaintiff was originally contracted.” The Court charged : “Undoubtedly the promise could not be enforced' unless a consideration passed. [The transfer of the assets of the firm would be a sufficient consideration.”] (4th error.)
The Cmrt negatived the three following points of the defendant :
[That unless the jury find the consideration moved from the plaintiff himself to the defendant, the defendant is not, liable in this case.] (5th error.)
*418[That unless the jury find that Steck & Paschall were released by the plaintiff- from the liabilities, and the defendant substituted as a debtor upon the alleged promise, the defendant is not liable. There can be no dual liability in the pase.] (6th error.)
[The evidence in this case disclosed the facts that the alleged promise of the defendant was not made in writing, was not a part of the bill of sale of the affects of Steck & Pasch.aU to the defendant, but was purely gratuitous on defendant’s part; hence the plaintiff can not recover in this suit, and the verdict of the jury must be for the defendant.] (7th error.)
April 9th, 1884, verdict for plaintiff for $938.
A. Elton then took this writ of-error.
W. H. Brown, Esq., for the plaintiff in error,
argued that to sustain the action of the alleged promise must have been clear and explicit; Keen vs. Young, 34 Pa., 60; Tucker vs. Bitting, 32 Pa., 428; Eshelman vs. Hammick, 76 Pa., 90; Haverly vs. Merino, 78 Pa., 257. There must have been consideration for a parol promise. There was no privity of estate or contract between Perkenpine and Elton; Kountz vs. Holthouse, 85 Pa., 235. Blymire vs. Boistle, 6 Watts, 182. Guthrie vs. Kerr, 85 Pa., 303; Torrens vs. Campbell, 74 Pa., 470.
A. M. Burton, Esq., contra,
argued that the Perkenpine •claim was embraced in the trial balance of Steck & Paschall, •and was just as valid as the other claims which Elton did pay, in addition to the direct evidence of his promise to pay. It was not necessary for Perkenpine to give up his recourse against Steck & Paschall; Dock vs. Boyd, 93 Pa, 92. The contract of Elton was to pay his own debt incurred by the purchase of the Steck & Paschall property; Wynn vs. Wood, 97 Pa., 216. As to the seventh error, he cited, Kun vs. Young, 34 Pa., 60: Townsend vs. Long, 77 Pa., 143.