257 F. 926 | 9th Cir. | 1919
(after stating the facts as above).
In the complaint it was alleged that certain difficulties arose between McCarty and the defendant, and that for the purpose of settling and adjusting said difficulties the defendant applied to the plaintiff for the' reduction of the option price in the plaintiff’s agreement with McCarty by the sum'of $5,000. The defendant moved that the plaintiff be required to make his complaint more definite and certain, and to set forth the nature of the difficulties between defendant and McCarty. The motion was denied, and that ruling is assigned as error. It is not shown, nor can it be deduced from anything in the record, that the denial of the motion prejudiced the defendant in any way. The difficulties which he had with McCarty were within his own knowledge, and it is not shown that he was taken by surprise by the evidence which was adduced. After the opening statements of counsel for the plaintiff, the defendant asked for a continuance on the ground that matter had been brought out that had not been anticipated, and he was granted a continuance for the time he asked for. The motion was addressed to the sound discretion of the court below, and it is clear that there was no abuse of dis
It is contended that the defendant’s promise to the plaintiff was void under the statute of frauds of Alaska. Comp.Laws 1913, §§ 1875-1880. That statute makes void an agreement, unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged, or his lawfully authorized agent: “(1) An agreement that by its terms is not to be performed within a year from the making thereof ; (2) an agreement to answer for the debt, default, or miscarriage of another.” Section 1876.
This case comes within neither of those provisions. In the first place, the agreement was not one which by its terms was not to be performed within a year from the making thereof. No time was specified for the payment of the balance of $4,000. It was to be paid as soon as McCarty paid the defendant what he owed him. McCarty then owed the money and he might have paid it at any time when.he chose to do so. This clause of the statute has been construed in many decisions. It is sufficient to refer to McPherson v. Cox, 96 U.S. 404, 416, 24 L.Ed. 746; Walker v. Johnson, 96 U.S. 424, 427, 24 L.Ed. 834, and Warner v. Texas & Pac. Ry., 164 U.S. 418, 17 S.Ct. 147, 41 L.Ed. 495, in all of which cases it is héld that the statute applies only to contracts which by their terms are not to be performed within a year, and not to contracts which may or ihay not be performed within that time.
In the second place, the defendant’s agreement was not to answer for the debt, default, or miscarriage of another. On the receipt of the defendant’s promise, the plaintiff reduced his demand against McCarty by $5,000, a demand which was evidenced by an instrument in writing, and in lieu thereof accepted the defendant’s oral promise as to $4,-000 of that sum. The defendant made the promise, not for the purpose of answering for McCarty’s debt, but to subserve his own interests. In Emerson v. Slater, 22 How. 28, 43 (16 L.Ed. 360), the court said: “Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business
To the same effect is Davis v. Patrick, 141 U.S. 479, 488, 12 S.Ct. 58, 35 L.Ed. 826.
Numerous assignments of error are directed to the rulings on the introduction of testimony. In none of them do we find merit. One error assigned and principally relied upon is that parol testimony was admitted to contradict the terms of the written instrument executed and delivered by the plaintiff to McCarty of date May 15, 1915, reciting the disputes that had arisen concerning the Totem fraction and the Leitrim claim, and the desire of the parties to compromise, and continuing: “Now, therefore, witnessed: That whereas, Albert Bell would receive $10,000 for the property involved, and in compromise of said controversy the parties hereto agree that said Albert Bell hereby acknowledges the receipt of $5,000 in hand paid as part payment of said option, and is willing to take $5,000 at the expiration of said option as payment in full.”
The plaintiff was permitted to testify, over the objection of the defendant, that he did not receive $5,000 at that time, that the intention of the instrument was to reduce the sum payable under the option, and that what he did receive was a note or assignment from the defendant for $1,000, payable out of the output of the Leitrim claim, and the defendant’s oral promise to pay him $4,000. The effect of the testimony was but to explain the nature of the transaction as between the plaintiff and McCarty, and it was permissible. 17 Cyc. 629. McCarty corroborated the plaintiff’s testimony. It would serve no useful purpose to review further the exceptions taken to the introduction of testimony.
The case having been tried by the court without a jury, the improper admission of evidence, if any such was admitted, is not ground for reversal, where, as here, there is other evidence in the record sufficient to sustain the findings of the court. Streeter v. Sanitary Dist. of Chicago,
We find no error. The judgment is affirmed.
