Millsaps v. Nixon

Hart, J., (after stating the facts). The first claim by counsel for the plaintiffs is that this case is controlled by the principles announced in Long v. McDaniel, 76 Ark. 292, and Treakel v. Vaughan, 83 Ark. 258; but we can not agree with their contention. In Long v. McDaniel there was a promise by the owner of the building- to pay for the plumbing and material used in repairing it, if the lessee did not. This was held to be an original promise because of the interest of the owner of the building in the performance of the contract. In Treakel v. Vaughan, supra, a promise to an attorney by the'purchaser of real estate that he would pay him for preparing the abstracts and statements of title to the property which he contemplated purchasing if the vendor did not, was held to be an original promise, upon which the promisor was liable. This conclusion was also based upon the fact that the vendee had a beneficial interest in the performance of the work by the attorney. Here the primary object of Nixon was not to subserve or promote his own interest. The mere fact that he had an interest in the performance of his tenant’s contract can not determine his liabiltiy to be that of an original promisor. It is the settled law in this State that in determining whether an oral promise is original or' collateral, the intention of the parties at the time it was made must be regarded; and in determining such intention the words of the promise, the situation of the parties and all of the circumstances attending the transaction should be taken into consideration. Kurtz v. Adams, 12 Ark. 174; Swaboda v. Throgmorton-Bruce Co., 88 Ark. 592. ■Tested by this rule, it is contended by counsel for the plaintiffs that the court erred in directing a verdict for the defendant Nixon; but we can not agree with this contention. All of the facts stated by counsel in their opening statement were considered by the court as proved and were taken as true. The court then found that the promise of Nixon was a collateral agreement to answer for the debt of Boone, and was therefore, within the statute of frauds. The fact stated by counsel and taken by the court as true showed that on the book account of the transaction the charge was made to Boone, and on the right of the name of Sam Boone were the words: “0. P. Nixon stands.” It also appears that both Nixon and Boone were sued in this suit. While, as contended by counsel for plaintiff, these facts are not conclusive against them, because they were susceptible of explanation and might be rebutted by testimony tending to show to whom the credit was originally given, still it will be noted that no explanation was offered by the plaintiff. On the other hand, plaintiffs’ counsel stated that the goods were sold to Boone, and that the defendant Nixon had promised to pay for them. This statement, when taken in connection with the book charge and the fact that the plaintiffs also sued Boone, establishes conclusively that the real substance of the transaction was that the plaintiff did not intend to look solely to Nixon in the first instnace for payment, but rather intended to look to him as surety. It is true the court based its reasons for directing the verdict upon the fact of the book charges, but we are not concerned with the reasoning of the court. A judgment may be correct, although based on mistaken reasons. Upon the facts stated and taken as true, the court was right in directing a verdict, and the judgment must stand, although a wrong reason was given. Judgment will be affirmed.