On appeal from the Supreme Court, Essex county.
For the plaintiff-respondent, Joseph C. Cassini.
For the defendant-appellant, Robert S. Hartgrove.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment in favor of the plaintiff-respondent and against the defendant-appellant in the sum of $651.90, entered on a verdict of the jury. The plaintiff instituted this action to recover the value of various caskets and merchandise which he allegedly sold to Adele M. Brown, trading as A. Brown Estate, the defendant. The complaint is in four counts. The first count is on a book account; the second count is for goods sold and delivered; the third count is based on an agreement whereby the defendant, Adele Brown, agreed to pay the plaintiff the balance due him for merchandise sold to her deceased husband, in consideration of the respondent extending to her credit by selling her a casket for the burial of her deceased husband and extending to her credit under the name of A. Brown Estate so that she might conduct the business previously
owned and operated by her deceased husband; the fourth count was for the reasonable value of the goods sold and delivered.
On the date of the death of the appellant's husband, he was indebted to the respondent in the sum of $724.80 for merchandise sold to him prior to that date. The plaintiff testified that on this day the agreement in question was entered into between him and Adele M. Brown, and that in accordance with the agreement and between the dates of December 22d, 1931, and February 11th, 1935, there became due to him on account of merchandise sold and the assumed indebtedness of the decedent, the sum of $2,850.25. He testified that the defendant had paid him, or received in credits, during that period, the sum of $2,127.35, and that in this action he was seeking to recover the difference.
The defendant and her witnesses denied that there was any such agreement that she personally should assume the debt due on the merchandise sold to her deceased husband, but stated that the agreement on the other hand was that the past indebtedness should be paid out of the business which she would continue to operate.
The trial court submitted to the jury the question whether the promise of the appellant was an original or collateral undertaking.
The first point made by the appellant is that the trial court was without power to sign the postea on the verdict of the jury because the amended complaint was not signed by either the respondent or his attorney. This is an objection which should have been taken at the trial and hence has been waived. Rodgers v. Harelick and Harelick, Inc., 124 N.J.L. 577.
The second point of the appellant is that the contract of assumption was in violation of the statute of frauds because it was an oral promise to pay the debt of another. It is well settled that where the oral promise upon which suit is brought is an original one, and not merely a collateral undertaking, it need not be in writing. The determinative test is to whom was the credit, in fact, given. If there was proof in support of the ...