Elkin v. Timlin

Opinion bv Mb. Justice Sterrett, In plaintiff’s first point the court was, in substance, requested to charge the jury: That if they found defendant made the contract to sell his own and Tabana S. Watt’s undivided interests in the land, and when Watt’s deed was offered to plaintiff he objected to taking it because he feared there might be judgments against Watt; and, in order to induce him to take the deed, defendant said, “I will stand good to you for all judgments against Watt,” and thereupon plaintiff accepted de [498] fendant’s proposition “ and took the deed in pursuance thereof, the verdict of the jury should be for plaintiff.” An examination of the testimony clearly shows that it tended to prove the facts of which this controlling proposition is predicated. The questions of fact thus raised by the testimony were necessarily involved in the issue, and it was the exclusive province of the jury to pass upon them. If those questions were determined in plaintiff’s favor, as the verdict shows they were, he was entitled to recover. There was therefore no error in affirming the point, as more fully explained in the general chargé. Nor was there any error in affirming plaintiff’s second point, and thereby instructing the jury, in substance, that if defendant bargained with plaintiff for the two undivided interests in the land, and, as an inducement to accept the deeds therefor as drawn, promised to stand good to him for anything that might be entered against Watt’s undivided interest, and plaintiff, relying on that promise, paid the consideration money and closed the transaction, he is entitled to recover. In effect, this proposition is substantially the same as the first. Together they embody all the material elements of plaintiff’s contention, and by necessary implication the verdict in his favor establishes all the facts upon which his right to recover depended. The defendant’s promise, as thus established by the verdict, was not without consideration; nor was it an undertaking to pay the debt of another and therefore void because it was not in writing. He was, at least, interested in effecting the sale of Watt’s undivided interest in the land, because the sale of his own interest depended on that. Plaintiff had agreed to buy both interests, but not either without the other. When h'e refused to close the transaction without being assured that Watt’s interest was unencumbered, defendant, prompted by self interest, made the promise on which plaintiff relied in accepting the deeds and paying the consideration money. There is no reason why he should not be bound by it. Instead of being a promise to pay the debt of another, within the meaning of the statute, it was essentially an original undertaking, to indemnify, etc., based on a sufficient consideration: Nugent v. Wolfe, 111 Pa. 471; Close v. Zell, 141 Pa. 390. In [499] the first of these it was said that when the leading object of the promise is to subserve some interest or purpose of the promisor himself, notwithstanding the effect is to pay or discharge the debt of another, the promise is not within the statute. It follows from what has been said that there was no error in refusing to affirm defendant’s points for charge, recited in the third to sixth specifications respectively. In the first of these he was requested to charge : “ That from the pleadings and evidence, the plaintiff cannot recover, and your verdict must be for the defendant.” To have affirmed that proposition would have been manifest error. The case, as we have seen, hinged upon questions of fact, which were necessarily for the consideration of the jury. In a very elaborate charge, the attention of the jury was called to these questions, and they were fairly submitted to their determination. There is no error in either of the matters complained of in the seventh to tenth specifications inclusive; nor in those portions of the learned judge’s charge recited in the remaining specifications, eleventh to eighteenth both inclusive. There appears to be nothing in the record that requires a reversal of the judgment. Judgment affirmed.