Trulock v. Blair

Opinion of the court by McAtee, J.: For the, purposes- of the demurrer the truthfulness of all this testimony is conceded1. We presume that the judgment below was rendered upon the supposition that, inasmuch as the goods were -charged on the books of the company to McCormick, the debt was the debt of McCormick, and the promises made by Blair, -and his liability, if any, were collateral, and to pay -the debt of another, and therefore not binding. But the fact that the goods were charged on the books of the" company to McCormick was only evidence tending to .show that -the credit was given to McCormick, and was by no means conclusive. It was a fact open to explanation, and to be considered in connection with all the other testimoy offered by the plaintiffs, in order to determine to whom the credit was given. The ice was ordered by Blair upon the express promise that he would pay for it. McCormick was his employe in- the *350 business o'f selling beer, and the ice was ordered for Hie purpose otf preserving the beer from spoiling, and the beer was Blair’s. The credit was given upon Blair’s account atone, as shown by this testimony, and was entered to the account of McCormick, in order to oblige Blair, and upon his own request. The plaintiffs had no knowledge otf McCormick, did not know his financial condition, and gave no credit to him. The evidence shows that the credit was extended exclusively to Blair. The fact that the account was entered in the name of McCormick did not necessarily imply that any credit was given to him at all. ■ Under the evidence in this case, we think it may be properly said that the only presumption which arises from that fact was that, imagfmuch as Blair requested that the account should be kept in- the name otf McCormick, he made the request for the purpose otf keeping his own account with McCormick clear. Upon this state of facts, the judgment should have been for the plaintiffs. The conclusion upon this evidence must be that the contract was an original contract with Blair, and that the promises made were not collateral to any agreement of the plaintiff company with McCormick. (Calahan v. Ward, 45 Kan. 545, 26 Pac. 53; Burkchalter v. Farmer, 5 Kan. 289; Amort v. Christofferson [Minn.] 59 N. W. 304; Maurin v. Fogelberg [Minn.] 32 N. W. 858.) The object otf the order for the ice made by Blair; the purpose for which it was used, and for which he wanted it and for which he ordered it, which was for his own benefit; the persistence with which he ordered it by telegram; by letter, and by visits to El Remo; and the application of the ice to the preservation of *351 his stock of beer,- — -clearly manifest that the Sole purpose of Blair was his own private-benefit, not the benefit of McCormick; and wherever the leald'in-g purpose of á person, who agrees to pay the debt of another is to- gain some advantage or promote some-interest'or purpose of hi® own, and not to become a mere guarantor or surety for another’s debt, and the promise is made upon a sufficient consideration, it will be valid,, although not in writing, and the -contract is not within the 'statute of frauds. (Fitzgerald v. Morrissey, [Neb.] 15 N. W. 234; Clopper v. Poland, 12 Neb. 69, 10 N. W. 538; Nelson v. Boynton, 3 Metc. [Mass.] 396.) The judgment of -the court below will be reversed, and. ■a new trial awarded to the plaintiffs in error. All of the Justices concurring.