Perkins v. Thorson

Gilfillan, G. J. The court below at the trial did not decide, and was not called on to decide, the question presented in the first assignment of error, to wit, that the agreement sued on was or was not within the statute of frauds. The request to direct a verdict for defendant did not present it, for it was distinctly put on the ground that plaintiff had not shown that he had succeeded to the rights of the original parties to the agreement. Evidently the cause was tried on the theory that the agreement was valid. Where there can be but one finding as to the fact, a motion for a new trial on the ground that the evidence does not sustain the general verdict will raise the question of law presented by the facts as the jury were required to find them. But there is no assignment of error to the effect that the court erred in holding the verdict sustained by the evidence, and we cannot, therefore, consider the point. The nature of the transaction by which, as plaintiff claims, the rights of the original payees in the agreement passed to plaintiff does not very clearly appear from the evidence; but there is enough to justify the jury in finding that the parties were interested in certain real estate and in this claim, and that they made a division of the property by which this claim was passed to plaintiff as a. part of his share in the division. In such a division, nothing to the contrary appearing, it must be assumed that whatever is surrendered by one to the others is the full consideration for what he receives. The jury might therefore find that the plaintiff paid the full consideration for the assignment of the claims to him. As the assignments could come under no other [87] provision of the statute of frauds than 1878 G. S. eh. 41, § 7, it is taken out of the statute by payment of the consideration. (Opinion published 53 Ni W. Rep. 373.) No other assignment of error need be specifically referred to. Order affirmed.