32 P. 195 | Idaho | 1893
This action was brought by the appellant to recover the sum of $275, interest, and costs. The amended' complaint states two causes of action. In the first cause of action appellant alleges that one Charles M. Gates was indebted to appellant in the sum of $315; that said Gates, in payment of said indebtedness, gave to appellant an order on the respondent for said sum; that thereafter respondent accepted said order, and paid appellant thereon the sum of forty-five-dollars, leaving, a balance due of $270. It is alleged in the second cause of action that one Frank Leighton, on or about, the second day of July, 1891, made and delivered to appellant an order in writing on the respondent, directing him to pay the appellant the sum of twenty-five dollars, and that on the-third day of July respondent accepted said order, and thereafter paid twenty dollars thereon; that there is still due a balance of five dollars. The respondent by answer denied many-of the allegations of the complaint, and set up a counterclaim for lumber sold and delivered to the appellant, of the value-of forty dollars, and prays for judgment therefor, with interest, and costs. The cause was tried by the court with a jury, and.
The appellant assigns four errors. The first is that the court erred in taking the first cause of action set forth in the complaint from the consideration of the jury. The record shows that one Gates was indebted to the appellant in the sum of $315 for a team of horses, some straw, barley, a cant hook and a swamp hook, and that appellant made a demand upon Gates for the payment of said sum on or about the 13th of July, 1891. Gates replied that he could not pay said sum, but that respondent, Miller, was owing him, and that he would give appellant an order on Miller for the said sum, whereupon the appellant replied: “All right. If Miller will accept the order, I will release you. If he won’t accept the order, I am going to bring this back to you.” It appears from the record that the appellant went to see Miller immediately after receiving said order from Gates, and presented the order to Miller for payment. Miller replied that he could not pay.the order at that time. The appellant informed Miller that his creditors were crowding him, and that he would have to have the money, and informed Miller that, unless he (Miller) paid said order, he would have to attach Gates’ stock, or get it out of him in some way. Miller replied: “You cannot get anything out of Gates, for all the money he gets has got to come through me.” Casey replied: “Then you pay the order.” Whereupon Miller said: “I will tell you what I will do. I will pay you $100 — - forty-five dollars on the Gates order and fifty-five on the McLeod order.” Casey replied that that was better than nothing, and inquired when he could pay the balance. Miller replied: “In about sixty days.” Casey replied: “All right. I will take that, and release Gates.” It further appears that in about ten days Casey presented the order to Miller, and he paid forty-five dollars thereon, and also paid the McLeod order of fifty-five dollars, making the $100 which he had agreed to pay. The order is as follows: “Fish Lake, July 17, 1891. “Mr. Miller: Please pay to Mr. James Casey the sum of three hundred and fifteen ($315) dollars, and charge to my account, and oblige. “[Signed] CHARLES M. GATES.”
The record is silent as to the reason entertained by the court for withdrawing the first cause of action from the consideration of the jury, and we are unable to perceive any reason that would justify it, and know of no authority that would sustain said ruling. It is true, under the evidence, that the attorney for the respondent stated to the court that he did “not think there had been any novation of these notes on that contract,” and we presume that the court concluded that novation was
In McLaren v. Hutchinson, 22 Cal. 187, 83 Am. Dec. 59, the court says: “Here is a mutual! agreement by the parties interested, and it can make no difference that this mutual agreement was not presented at the same moment of time, or that all were not present at the time of its completion. Beach and the defendant assented to it when the agreement was signed and delivered, and the creditors afterward assented when informed of the agreement by the defendant. This assent to the agreement gave them a right of action against the defendant, and the case is not within the statute of frauds.” So, in the case at bar, Gates assented to such arrangement, and gave Casey an order on the respondent. Casey assented to the arrangement by accepting the order; Miller assented by agreeing to pay the order. The pretense that Miller never accepted said order, because, when presented to him the second time, he stated to the appellant that he knew nothing about the matter, is too transparent to deserve any consideration whatever. Appellant thereafter met Gates, and told him that he was going to bring suit against Miller if he (Miller) did not pay the order, and Gates thereupon replied that he would try to raise the money and pay it himself — that he would take up the order himself. This statement of Gates has no bearing on this matter whatever. The evidence clearly shows that the appellant looked to Miller only for the payment of said order after his acceptance thereof. That appellant neglected to deliver said two- promissory notes to Gates is no concern of the respondent. After accepting the order on Miller, and Miller’s acceptance of the same, appellant swears positively that he released Gates, and Gates was no doubt entitled to the delivery of said promissory notes on demand; but the nondelivery of said notes to Gates is no defense in this action. In the above view of the case it is not necessary for us to pass upon the instructions to the jury, for upon a retrial of the case, on the issues as made by the pleadings, the court would certainly not instruct the jury as it did at the former trial. The court should have granted appellant’s motion for a new trial. The judgment of the court below is reversed, and the cause remanded for a new trial in accordance with the views expressed in this opinion, with costs of this appeal in favor of the appellant.