Sandgren v. Cain Lumber Co.

COSHOW, J. The court did not abuse its discretion by permitting plaintiffs to file their amended complaint: Or. L., § 102; Zimmerle v. Childers, 67 Or. 465, 470, 471 (136 Pac. 349); York v. Nash, 42 Or. 321, 327 (71 Pac. 59). For the purpose of proving the incorporation of the defendant Cain Lumber Company, plaintiffs tendered the certificate of incorporation. Defendant Austin objected because that was not the proper method of proving the incorporation of the defendant. We do not believe that defendant is entitled to raise the objection, especially in view of the fact that he received property from that corporation and the corporation itself, by its answer, admits its existence. Whether or not it was duly incorporated is immaterial *378 to defendant Austin’s defense. There is no merit in that objection. Practically all of the other assignments of error are based upon or grow out of the liability of defendant Austin for the debt of his co-defendant to plaintiffs. It is claimed that the complaint charges that defendant Austin undertook to answer for the debt of another and that his promise was not in writing. The law is well settled in this state that where a person receives a fund or property from a debtor and at the time that he receives said fund, agrees to pay the debt of the debtor to a third person, who is a stranger to the agreement, that the stranger for whose benefit the promise is made may Sue the promisor and that such promise is an original undertaking not within the statute of frauds: Feldman v. McGuire, 34 Or. 309, 313 (55 Pac. 872); The Umpqua Valley Bank v. Wilson, 120 Or. 396, 403, 404 (252 Pac. 563), and authorities there cited. We have carefully examined all of the other assignments of error and find no merit in them. Reading the court’s instructions to the jury as a whole, the learned judge was extremely careful to instruct the jury that before plaintiffs could recover they must prove the agreement of Austin to pay the debt its co-defendant owed plaintiffs at the time said Austin received from its co-defendant a fund or property. The instructions are complete and clear. The part thereof upon which defendant Austin bases the error when considered alone is objectionable but taken with its context it clearly states the law applicable to the case at bar. There was evidence from which the jury could infer that defendant Austin took over the sawmill and other property from his co-defendant, Cain Lumber *379 Company, and at that time agreed and promised to pay the debts and obligations of its co-defendant. The judgment is affirmed. Affirmed. Rehearing Denied. Rand, C. J., and McBride and Rossman, JJ., concur.