Merriam v. Pine City Lumber Co.

Cornell, J. 1. Upon a careful examination of the whole evidence, we are satisfied no such clear case is presented of an insufficiency in the evidence to support the verdict as brings this case within the rule governing this court in granting a new trial upon that ground. Upon each material fact controverted on the trial there was sufficient, in the nature and character of the testimony and evidence adduced, fairly to raise an issue proper for the consideration of ’the jury, and its decision thereon is final. 2. The question referred to in defendant’s second point was objectionable, in that it called for the secret intention and understanding of the party in giving the notes, instead of the facts and circumstances connected with the transac [322] tiou. As to tlie ruling referred to in bis third point, the error, if any, was cured by the subsequent testimony of the witness, which substantially answered the enquiry made of him by the question which was excluded under the objection. Sanborn v. Sturtevant, 17 Minn. 200. 3. It is admitted by the pleadings, and was neither controverted nor sought to be, by either party at the trial, that, at the time the agreement sued on was entered into between plaintiff and defendant, the former was indebted to the state in a certain sum for stumpage on the logs so sold by him to defendant, and that, as part of the stipulated purchase price, defendant, by the terms of the agreement, promised the plaintiff to pay the amount of his said debt to the state, within a specified time therein named; and, though such time of payment had passed, the debt had not been paid by either party, but remained due and unpaid when the action was brought. Upon these facts, it was claimed by the defendant in his answer, and insisted on at the trial, as a defence, that the plaintiff could maintain no action upon a breach of this stipulation of the defendant, until he had first paid the debt himself; because, under the rule laid down by this court in Sanders v. Clason, 13 Minn. 379, the defendant was legally holden to the state upon such his promise to the plaintiff. The refusal of the court so to charge the jury upon this branch of the case is assigned as error in this court. The defendant’s undertaking ivas not one of indemnity. It was an affirmative, unconditional promise to the plaintiff, upon a valid consideration, to pay, within a specified time, a definite sum of money to a third party — the state — for his benefit. Though, within the doctrine of the New York cases upon this subject, as well as our own, the state might have maintained an action against defendant upon a breach of its agreement, it is well settled, both upon principle and authority, that the defendant also remained liable to plaintiff, upon its promise, by privity of contract; and a cause of [323] ■action accrued in favor of the latter, which became complete immediately upon its breach by the failure of the defendant to make the payment at the stipulated time. It is not necessary for the promisee in such a case to discharge the ■debt before asserting his right of action against the promisor, growing out of the breach of his own agreement. The measure of damages in a case of this kind is the amount of the debt agreed to be paid. The ruling of the court below, therefore, upon this subject was correct. Port v. Jackson, 17 John. 239; s. c., Jackson v. Port, 17 John. 479; Matter of Negus, 7 Wend.’ 499 ; Thomas v. Allen, 1 Hill, 145 ; Churchill v. Hunt, 3 Denio, 321; Wicker v. Hoppock, 6 Wall. 94. The point is made in this court — and for the first time in the case, as appears from the record before us — that plaintiff ■cannot sustain a recovery for the broach of defendant’s stipulation, in this action, because of the insufficiency of the averments in the complaint. Conceding that the defect •complained of was' of a material character, and not cured by the admissions in the answer — which may be well doubted, under the decisions of this court in the cases of Estes v. Farnham, 11 Minn. 423, and Rollins v. St. Paul Lumber Co., 21 Minn. 5 — clearly, to take advantage of it here as good ground of error, defendant should have pointed it out, and obtained a ruling upon it, in the district court. In view of the admissions in the answer, it was properly a matter where, in the exercise of a sound discretion, an amendment of the complaint might have been allowed, remedying the defect complained of. Instead of this, however, the trial was conducted, without objection, upon "the theory that the matters in controversy between the parties were properly put in issue by the pleadings, and no suggestion was made of any departure in pleading, or of any variance between the contract set up in the complaint and that proved upon the trial. Having tried the case upon this theory, defendant will not be permitted to take a [324] different one here, when it is apparent it might have been successfully met by the opposite party, had his attention been called to it in the district court. 4. No point is made in this court but that the law upon the subject of false and fraudulent representations, as applicable to the evidence, was correctly given by the court in its general charge to the jury, and, in our opinion, it fully covered the case. In the light of this charge, the jury could not have been misled, by the modification of defendant’s third request, to believe that false representations, positively made with intent to deceive, would not, when relied and acted upon, constitute good ground of action, even though not made upon personal knowledge. The purport of the language made use of by the court, in explaining and giving to the jury the defendant’s fourth request, was that the proposition therein contained was correct as confined to representations positively or unqualifiedly made, and that defendant had the right to rely upon them, unless ho had the means of knowledge to the contrary then in his possession, or at hand and available. As thus understood, it was not objectionable. The second request of plaintiff, as modified by the court involved no legal error, and there was some evidence in the-case in view of which it was properly given. If plaintiff’s alleged misrepresentations in regard to the situation of the logs and the condition of the dams were positively and fraudulently made, under circumstances inducing a belief in their truth by defendant, then plaintiff' was responsible for any injury occasioned thereby, whether such statements were understood as made upon information derived from others, or from his personal knowledge; otherwise, however, if they were not so made, but were made under circumstances indicating only the expression of' a belief on the part of the plaintiff, founded upon information alone, and with no intention to deceive nor to vouch for the correctness of such belief. The character of the. [325] statements, and the circumstances under which they were made, were matters for the consideration and determination of the jury. The fair purport and meaning of plaintiff’s fourth request, as modified by the court, were not, considered in connection with the whole charge, at variance with these views, and did not, in our opinion, mislead the jury. No error is presented by any of the exceptions taken, for which a new trial should be granted. Order affirmed.