Bean v. Tripp

BEAN, J. The principal ground of defendants’ contention is that the agreement to pay the men for cutting and transporting the logs and manufacturing the same is within the statute of frauds, and required to be in writing. It is apparent from the record that a three-cornered deal was made between Allen & Wickstrom and defendants, Tripp & Powell, and the men who performed the labor and furnished the stumpage, whereby it was agreed by the defendants that in consideration of the employees of Allen & Wickstrom fore — 221 — going the enforcement of their claims for services performed and stumpage furnished, and the continuance of their assistance in the business, in order that the defendants might receive the ties manufactured from the logs which the laborers procured, that defendants, Tripp & Powell, would pay for such services, which should be evidenced by the orders fixing the amount by Allen & Wickstrom upon Tripp & Powell in favor of the several claimants. The evidence signifies the following: This arrangement was carried out on the part of Allen & Wickstrom and the employees. Orders of the purport of the one set forth above were issued by Allen & Wickstrom to the laborers and other claimants, for the amount due each. The orders were presented to defendants, and several of them were accepted in writing, and the defendants promised to pay each of such orders. It is shown by the record that over $5,000 came into the hands of defendants from the sales of the ties after the orders were given and so accepted. The acceptance or agreement to pay contemplated payment out of this fund. 1. This agreement of the defendants was not within the statute of frauds. It was a promise to pay their own debt. The motion for the several nonsuits was properly denied: Wadhams v. Inman, 38 Or. 146 (63 Pac. 11); 25 R. C. L., p. 507, § 90; note, 12 Ann. Cas. 1102; note, 126 Am. St. Rep. 496; note, 9 L. R. A. (N. S.) 54; Barker v. Bucklin, 2 Denio (N. Y.), 45 (43 Am. Dec. 726); Townsend v. Long, 77 Pa. 143 (18 Am. Rep. 438). It is stated in 25 R. C. L., page 507, Section 90, thus: “Where a purchaser of personal property agrees, in consideration or part consideration therefor, to pay an indebtedness of the seller to the plaintiff, his promise is not within the statute.” — 222 — In Aldrich v. Ames, 9 Gray (Mass.), 77, quoted in Rose v. Wollenberg, 31 Or. 269, at page 278 (44 Pac. 382, at page 385, 65 Am. St. Rep. 826, 39 L. R. A. 378) Mr. Justice Shaw says: "The theory of the statute of frauds is this: That when a third party promises the creditor to pay him a debt due to him from a person named, the effect of such a promise is to become a surety or guarantor only, and shall be manifested by written evidence. The promise in such case is to the creditor, not to the debtor. For instance, if A, a debtor, owes a debt to B, and C promises B, the creditor, to pay it, that is a promise to the creditor to pay the debt of A. But in the same case should C, on good consideration, promise A, the debtor, to pay' the debt of B, and indemnify A from the payment, although one of the results is to pay the debt of B, yet it is not a promise to the creditor to pay the debt of another, but a promise to the debtor to pay his debt. This rule appears to us to be well settled as the true construction of the statute.” A promise to pay the debt of a third person arising out of some new consideration or benefit to the promisor, like the benefit which the defendants received by the obtainment of the ties, or where there is harm to the promisee, such as the forbearance of the claimants to enforce their claims against the ties referred to, moving to the promisor either from the promisee or the original debtor, in this instance Allen & Wickstrom, has been held not to be within the statute of frauds, although the original debt still subsists and remains unaffected by such agreement: 12 Ann. Cas. note, at page 1103; Am. Lead Pencil Co. v. Wolfe, 30 Fla. 360 (11 South. 488); Metzger v. Edson, 25 Misc. Rep. (N. Y.) 236 (55 N. Y. Supp. 61); Sing Sing First Nat. Bank. v. Chalmers, 144 N. Y. 432 (30 N. E. 331). — 223 — It is held that, whenever the facts show that the debtor has transferred or delivered to the promisor, for his own nse and benefit, money or property in consideration of the latter’s agreement to assume and pay the outstanding debt, and the latter thereupon has promised the creditor to pay, that promise is original, for the reason that by acceptance of the property finder an agreement to assume and pay the debt, the promisor has made that debt his own, has become primarily liable for its discharge, and has assumed an independent duty of payment irrespective of the liability of the principal debtor. The promise made by the defendants, Tripp & Powell, to pay the employees of Allen & Wickstrom and the acceptance of, and agreement to pay, the orders given, out of the proceeds of the ties, in order that the defendants might obtain the ties, was an agreement to pay the debt of defendants, and not alone the debt of Allen & Wickstrom. It was based upon the sufficient consideration. This ruling is not in conflict with the opinion in Wadhams v. Inman, 38 Or. 146 (63 Pac. 11), although that case was tried upon somewhat of a different theory from the present case. In the case at bar the testimony tended to show that the claimants had no knowledge of the specific provision of the contract between defendants and Allen & Wickstrom. Whether the mortgages executed by Allen & Wickstrom in favor of defendants are sufficient to protect them or not, it is unnecessary to determine. They made a valid contract with plaintiff’s assignors, and it devolves upon them to comply with their agreement. 2, 3. The charge to the jury given by the learned trial judge, above set forth, was as fair to defendants as they could reasonably expect. It plainly submitted — 224 — to the jury their theory of the ease as well as the theory of the plaintiff. The, jury found the facts in favor of the plaintiff, and against the defendant upon their theory of the case, as shown by verdict and the instruction. Defendant complains of instruction number 18 further charging the jury, in effect, that it was for them to determine the real intention of the parties with, reference to the plaintiff’s assignors taking the orders and the payment by the defendants of the orders in controversy. The court charged that whatever the defendants’ real intention may have been, if the jury found from the evidence that they induced the plaintiff’s assignors to believe they were to be paid from the first proceeds of the sale of the ties, and that the claim of plaintiff’s assignors should be paid before defendants, and they refrained from asserting their liens, defendants would be bound. This instruction was apparently given on account of testimony of a witness for defendant, who wrote the orders, as to what he intended such orders to mean. It is clear that it was not for the witness to construe the orders; that it would only tend to confuse the jury. The orders do not bear the construction claimed by defendants. The instruction complained of should be taken together with the remaining charge given by the court, and when so construed the jury must have understood that the court had reference "to the defendants leading the plaintiff’s assignors to believe they were to be paid first, by the promise of defendants to accept and pay the orders. The charge to the jury, taken as a whole, is not subject to the criticism made by defendant and fairly submitted the issues to the jury. Several instructions to the jury were requested by the defendant at a time during the trial too late to conform to the rule of the court. Such refusal is alleged as an error. — 225 — It was appropriate for the Circuit Court to enforce its rules. We see no reason for additional instructions to the jury. They would only serve to confuse the issues. We find no error in the record. The judgment of the lower court is affirmed. Affirmed. Burnett, C. J., and Johns and Brown, JJ., concur.