Matter of Saltus. ray-street, to Caroline Saltus, a daughter of the testator, for the price of twenty thousand dollars. No question was made before the surrogate, nor is any made here, but that the appellants had full power to sell and convey this property. The interest of the testator therein was that of lessee, for a term of years, from Trinity Church. Upon the hearing before the surrogate, evidence was given as to the time of the sale, and as to the value of the property. It was claimed, upon the part of the appellants, that the sale was made in November, 1855; and the respondents claimed that it was not made until March, 1856. This was a material question, as the evidence showed that the property was rapidly rising in value; and all the evidence tending to show that the appellants acted in bad faith related to a time subsequent to November, 1855. The evidence of the witness Gilbert M. Spier, of what occurred at an interview between him and Theodore Saltus, one of the appellants, in March, 1856, if true, shows that the sale had not, at that time, been made. Although there is some evidence tending to show that the sale was made the November previous, there is nothing of that certain, definite character, to call for a reversal of the conclusion of the surrogate upon this point. Adopting the finding as to the time of the sale, the evidence fully warrants the further finding, that the property was worth, at least, twenty-five thousand dollars at the time of the sale, and, with reasonable diligence, might have been sold for that The addition made to the credit of the estate was, therefore, correct. 2 R. S. 525, § 8. sum. As to the amount charged by the appellants as having been paid to Francis II. Saltus, I think the surrogate fell into an error. The will provides that the executors shall pay him the one-eighth part of the income of the residuary estate for life, and, at his decease, pay the said eighth to Francis S. Saltus. The surrogate wholly disallowed the charge, upon the ground that the executors had no right, by the will, to pay any of the principal to Francis H. The ground is correct, but does not apply to the whole sum so paid. Several years had elapsed from the death of the testator, at the time of accounting, and the residuary estate had earned more or less income, one-eighth of which the executors were required to pay Francis H. The de Matter of Saltus. cree should have allowed the appellants this eighth of the income on what had been paid to Francis II., and disallowed the other money so paid to him. The most material item of credit claimed by the appellants, and disallowed by the surrogate, was the forty-one thousand five hundred and fifty-seven dollars and one cent charged on account of paying notes of the Peru Iron Company. I think this charge properly disallowed. The Peru Iron Company was a corporation, in which the testator owned the principal amount of stock. This stock, as I understand the case, by transfers, had become vested in Theodore Saltus. This circumstance is not material to the view I take of the question, except so far as the form of the account is concerned. This debt, charged as having been paid, consists mainly of drafts drawn by Saltus & Co. upon the iron company, and accepted by the latter, on account of advances made by the former for the latter. The debt was that of the iron company, and should have been paid by the latter. These advances were made by Saltus & Co., and the testator owned the capital of the firm, and six-eighths of the profits. If the appellants were charged upon these drafts as drawers, and compelled to pay, it was their duty to have collected the amount from the iron company at once. From the facts appearing in the case, there is no doubt of the ability of the latter to pay. Should the surrogate have allowed this charge, it would have been his duty to see that the estate was credited the same amount for a debt against the iron company, for money paid, and its use. The only question presented, as appears before the surrogate, was, whether the estate was not bound to pay this debt for the benefit of Theodore Saltus, or Saltus & Co.,-who purchased the real estate of the company, and its stock from the executors. This, the estate was clearly not bound to do. That is the argument presented here for the allowance of this item to the appellants. Of course, had the iron company been insolvent and been charged upon this paper, the executors would be entitled to credit for its payment; but that is not the question made by the parties. That question, as above remarked, is, whether the estate of the testator should pay this paper. That was the Mattice v. Allen. question decided by the surrogate; and his decision was correct. It is claimed by the appellants, that the surrogate erred in fixing the amount of personal estate, in the firm of Saltus & Co., for which the executors were accountable. That amount was a trifle over one hundred and forty-nine thousand dollars. This was shown by the books of the firm; and these books were prima facie evidence against Theodore Saltus, the principal acting executor, and a member of the firm. This sum was properly assumed by the surrogate; and it was incumbent upon the appellants to show what corrections, if any, should be made. The above are the only questions argued in this court. A further examination shows that Henry Saltus was indebted to the estate in a sum exceeding the amount he was entitled to as interest upon his residuary share. The surrogate was, therefore, right in not allowing a credit to the appellants for the sums paid him. His claim to interest upon his share should have been applied upon his indebtedness to the estate. The judgment should be affirmed. All the judges concurred. Judgment affirmed, with costs. MATTICE v. ALLEN. September, 1867. Reversing 33 Barb. 543. A sale of personal property upwards of fifty dollars in value, on an agreement between the seller and the agent of the buyer that a debt due to the agent from the seller shall apply as a payment on the price, is not "a payment at the time of making the contract" within the provisions of the statute of frauds. 2 R. S. 136, § 3. The doctrine that an agreement that mutual debts shall be applied in satisfaction of each other, operates as a satisfaction of both, will not constitute a payment such as will save an oral agreement from the statute of frauds. John W. Mattice sued William G. Allen and Adolf Hugel, 'Mattice v. Allen. in the supreme court, to recover damages for defendants' breach of an alleged contract to purchase from plaintiff some fifteen hundred bushels of barley, to be paid for on delivery. The plaintiff proved an oral bargain for the sale as alleged in the complaint. He also proved that after some negotiation, but before consummating the trade, he had borrowed from defendants' agent the sum of forty dollars which, it was then agreed between them, should be applied upon the sale of the barley, if they should afterward conclude a bargain therefor. A few days afterward they concluded such bargain, and it was then agreed that the forty dollars should be applied on the contract. Defendants moved for a nonsuit, on the ground that there was no note or memorandum of the sale, and no payment of purchase money, and therefore no valid agreement under the statute of frauds. The referee denied the motion, and after defendants' evidence had been received, reported in favor of the plaintiff. The supreme court, on appeal, were of opinion that there was here a sufficient payment to take the case out of the statute, within the principles of Brabin v. Hyde, 30 Barb. 267; Artcher v. Zeh, 5 Hill, 200; Ely v. Ormsby, 12 Barb. 570; 2 Sandf. 157. (Reported in 33 Barb. 543.) Defendants appealed to this court. D. Rumsey, for defendants, appellants ;-Cited Downs v. Ross, 23 Wend. 270; Shindler v. Houston, 1 N. Y. (1 Comst.) 261; 2 R. S. 136, § 3; 135, § 2; Conkling v. King, 10 Barb. 372;* Artcher v. Zeh, 5 Hill, 200; Clark v. Tucker, 2 Sandf. 157; Ely v. Ormsby, 12 Barb. 570; Teed v. Teed, 44 Id. 96; Brabin v. Hyde, 32 N. Y. 520; Shiudler v. Houston, 1 N. Y. (1 Comst.) 261-5; Baker v. Cuyler, 12 Barb. 667; 3 R. S. 2 ed. 656-7; Bissell v. Balcom, 40 Barb. 98; Sprague v. Blake, 20 Wend. 61; McKnight v. Dunlop, 5 N. Y. (1 Seld.) 537; Metcalf v. Mattisons, 32 N. Y. 464; Magee v. Osborn, Id. 669-677. * Affirmed in 10 N. Y. (6 Seld.) 440. Mattice v. Allen. A. P. Ferris, attorney for plaintiff, respondent;—Cited Davis v. Spencer, 24 N. Y. 390; Hoyt v. Thompson, 19 Id. 212; Cady v. Allen, 18 Id. 573; Code, § 272; Allen v. Culver, 3 Den. 284; 1 Wait L. & Prac. 1063, 1080; Truscott v. King, 6 N. Y. (2 Seld.) 147; Combs v. Bateman, 10 Barb. 573; Marvin v. Vedder, 5 Cow. 671; Billings v. Vanderbeck, 23 Barb. 546; Lounsbury v. De Pew, 28 Id. 48-9; Shindler v. Houston, 1 N. Y. (1 Comst.) 261; Brabin v. Hyde, 32 Id. 519. GROVER, J.-The precise question presented by the defendants' motion for a nonsuit was decided against the plaintiff by this court in Brabin v. Hyde, 32 N. Y. 519. In that case, the purchaser had a debt of upward of two hundred dollars against the seller, and made a verbal contract to purchase from him a mare and colt for one hundred and seventy-five dollars, and to apply the purchase money in payment of the debt. This court held, that the agreement so to apply the purchase price was not a payment at the time of making the contract, within the last clause of section 3, 2 R. S. 136. In the present case, the defendants' agent, who made the agreement to purchase of the plaintiff his barley, had a debt against him of forty dollars, and agreed at the time that this debt should apply as payment upon the barley. It is manifest that the circumstance of the debt being due the agent instead of the defendants, can make no difference, at least, favorable to the plaintiff. The referee should therefore have held that the contract was void by the statute of frauds, and on this ground granted the motion for a nonsuit. There was no proof given subsequent to the denial of the motion, tending in any respect to show the contract to be valid, and therefore the defendants' exception to the erroneous ruling was not obviated. The reason of the rule held in Brabin v. Hyde is that mere words will not satisfy the requirement of the statute. That in addition, some act of the parties is required, showing by such act their assent to the contract. The delivery of the note of a third person or anything else agreed to be received in payment, in whole or in part, is such act as is required when a debt due the purchaser from the seller is to apply as payment, the de |