McKeany v. Black

Haynes, C. This action is upon a promissory note made by the defendant, Mary F. Black, to the plaintiff April 15, 1891, payable “ on or before three years after date,” for twelve hundred and twenty-three dollars. A judgment by default was taken against her, and no question is made as to that judgment.

As to the liability of defendant Lilienthal, the complaint, after alleging the making of said note by defendant Black, alleged, in substance, that at the time said [590]note was made the defendants were the executrix and executor of the estate of Joseph F. Black, deceased; that the plaintiff was the owner of a claim against said estate which had been duly allowed by the defendants and approved by the court for said sum of twelve hundred and twenty-three dollars; that Mary F. Black was the sole legatee of said testator; that defendant Lilienthal was the owner of an undivided one-third of all the real estate of which Joseph F. Black died seised; that defendant Lilienthal promised and agreed with defendant Black that if she would execute and deliver said note to the plaintiff “ and the plaintiff would accept said promissory note and withdraw, release, and discharge his claim aforesaid as against the said estate of Joseph F. Black, deceased, he, the said E. R. Lilienthal, would pay the said promissory note and the interest thereon to the owner and holder thereof at its maturity”; that in consideration of said promise the plaintiff executed and delivered to defendants, as such executors, a full release and discharge of his said claim against said estate, and accepted said promissory note and the said promise and agreement of the defendant Lilienthal to pay said note at its maturity.

A demurrer to the complaint was overruled, and defendant Lilienthal answered, and in addition to denials pleaded several special defenses, among which were: 1. That the alleged agreement was not expressly made or intended for the benefit of the plaintiff; 2. That by its terms it was not to be performed within a year, and was not in writing; and 3. That the promise alleged is a special promise to answer for the debt, default, or miscarriage of defendant Black, and is not in writing.

The cause was tried by the court without a jury, and at the conclusion of plaintiff’s evidence defendant Lilienthal moved for a nonsuit upon several grounds, among others, that no legal evidence was introduced in support of the allegations of the complaint, because no agreement or note or memorandum thereof in writing signed by said defendant or his agent had been offered