Hale v. Stuart

Norton, J. The objection to the introduction of any evidence because the petition did not state a cause of action, and that it improperly blended two causes of action, was properly overruled. As we construe the petition, it embraced really but one cause of action, founded upon the promise of defendant to pay the note referred to in the petition, on the condition that B. F. Hale would attend the sale of the property mentioned in the deed of trust given to secure said note, buy the said property at $600, and have it conveyed to defendant. The statute of frauds which has been invoked as a barrier to plaintiffs’ right to recover is not applicable to the facts of the case. The promise made by defendant to pay the note in question was made on a sufficient consideration to support the promise. And he reaped the full [23] benefit of it, because the evidence clearly shows that said Hale did attend said sale, did buy said property at the sum of $600, did have the trustee convey it by deed to defendant, who has been in possession of it since. We think the averment in the petition that B. E. Hale was acting for and on behalf of his wife was established on the trial by his evidence. The said note offered in evidence was properly received to measure the extent of defendant’s liability under his agreement. The instructions given by the court both on behalf of plaintiffs and defendant, were in harmony with the above theory of the case, and those that were refused ignored it, and for that reason were properly refused. Upon the whole record we think the judgment was for the right party, and it is hereby affirmed, in which all concur.