Page:Federal Reporter, 1st Series, Volume 7.djvu/461

 S0N8TIBT ». KBBIiETi ii9 �to be valid abd honafide, in so far as tMe veiidee is concerned, and the title is vested in him, and where he has sold or dia- posed of a portion of the stock, and probably expended money and given time and labor in its care and preservationj it soems probable that 6nly a court of equity would bo competent to grant any relief to the creditors of the vendor. �2. But it is not necessary to pass finally upon this question, as I am clearly of the opinion that the proof shows a payment by plaintiff of the whole of the purchase price. It is con- tended that the promiiae by plaintiff to assume and pay the indebtedness of Forbes at the bank, though made ' as a part of the consideration for the purchase, was not paymentj and this for the reason that plaintiff is not legally bound to pay those debts. It is said that the holders of those claims can not sue plaintiff and recover upon them. Upon this question there is a conflict of authority in this country. ,In many of the States the right of action by the payee of such de'bts against the party assuming to pay them is maintainedj eVen wbere such payee is not party to -the contract. �This upon the ground that such a promise is an original- promise, based upon a valuable consideration, namely, the sale and delivery of the goods. 1 Pars. Con. (5th Ed.) 466- 468; Fanly v.Cleveland, 4Cow. 432; Same y.Same, Id. 639; Canal Co. v. Bank, 4 Duer, 97; Lawrence v. Fox^ 20 N. Y. 268; Arnold v. Lyman, 17 Mass. 400; Carnngie \. MorrisOn, 2 Met. 404; Crocker v. Stone, 7 Cush. 338; Hynd v. Hold- ship, 2 Watts, 104; Burs v. Robinson, 9 Barr, 229; Eddy v. Roberts, 17 111. 608; Todd v. Tobey, 29 Me. 219; Motley v. Manuf'g Ins. Co. Id. 337; Metcalf on Contracts, 205-11, and cases cited in notes. �And such is the law in Minnesota, as repeatedly decided by the supreme court of that state. Sanders y. Clason, 13 Minn. 379; Goeiz v. Foos, 14 Minn. 265; Merriam v. Lum- ber Co. 23 Minn. 314. But the opposite doctrine is main- tained by numerous cases, and among them, by the supreme court of the United States, in Nat. Bank v. Grand Lodge, 98 U. S. 123; 2 Chitty, Con. (llth Ed.) 74, and cases cited in notes ; Mellon v. Whipple, 1 Gray, 317. �v.7,no.4— 29 ��� �