Davidson v. Madden, 173 P. 320

173 P. 320 | Or. | 1918

MOOEE, J. —

1,2. Exceptions having been duly saved, it is maintained by defendant’s counsel that errors were committed in denying their requests to charge the jury as follows:

1. “I instruct you that a partnership is under no obligation for the individual debts of its members, and hence a partner cannot nse the firm assets to pay his individual debts without their consent, nor can he pledge the firm credits for such debts.”

2. “I further instruct you that a partner’s interest in the partnership property is only his proportionate share of what remains after the payment of the partnership debts. He has no such distinct interest in any distinct parcel of the partnership property as enables hira to pledge it for his own debts. Such interest in a part of the firm assets is too remote and indeterminate to admit of its being conveyed as security or otherwise. ’ ’

If the language thus employed affords a correct statement of the rules of law which are applicable in some classes of cases, it is difficult to understand how these requested instructions are important in this instance. If it be assumed that the chattel mortgage which was executed by New Madden to the plaintiff was invalid because it attempted to hypothecate an undivided half interest in partnership property, to secure the payment of an individual debt of one of the partners, without the knowledge or consent of his associate in business, a subsequent agreement by these persons that in consideration of New Madden’s surrender to John Madden of all his interest in the sheep, the defendant agreed to pay New Madden’s debts, and the plaintiff assented to such agreement, the inducement to the contract was sufficient to uphold it: Baker & Smith v. Eglin, 11 Or. 333 (8 Pac. 280); Feldman v. McGuire, 34 Or. 309 (55 Pac. 872).

3. The defendant’s motion for a judgment of nonsuit was denied, but we understand the question thus involved relates to the alleged invalidity of the chattel mortgage for the reason stated, and not to any lack of proof on the part of the plaintiff to substantiate the averment of the complaint, to the effect that for the consideration stated the defendant assumed and agreed to pay New Madden’s debts. Though the defendant, as a witness, denied that he ever agreed to undertake the payment of any of the indebtedness due from his brother, the testimony of the plaintiff is to the contrary. Davidson’s testimony is corroborated in many particulars by that of other witnesses. From this dispute the jury determined the issue in favor of the plaintiff, and their conclusion must be accepted as the final arbitrament of the matter.

4. It will be remembered that the complaint charged that in further consideration of the plaintiff’s forbearance to foreclose his mortgage, the defendant assumed and agreed to pay the amount of the promissory note secured by the mortgage. The plaintiff testified that he never agreed to postpone the enforcement of the lien upon the sheep and lambs, though no action was instituted on the defendant’s alleged engagement to pay the indebtedness until about six years after the interest in the mortgaged property is alleged to have been assigned to him. The testimony so adverted to does not render the denial of the motion for a judgment of nonsuit erroneous, for the final conclusion that was reached herein can well rest upon the averment in the complaint that in .consideration of New Madden’s transfer of his undivided half interest in the sheep and lambs to the defendant, the latter assumed and agreed to pay the mortgage debt.

5. An exception having been taken to the following instruction it is insisted by defendant’s counsel that an error was committed in giving it:

“If you find from a preponderance of all the evidence that the defendant John Madden took the sheep after New Madden, the mortgagor, had told him he could do so by paying certain indebtedness of said New Madden, including the indebtedness to L. P. Davidson as represented by the balance then due on the promissory note of New Madden, and if you further find that John Madden accepted the sheep with that understanding, in that event I instruct you that John Madden, the defendant, would be liable for the amount of the indebtedness covered by this note, and your verdict should be for the plaintiff.”

It is admitted that the sheep and lambs described in the mortgage were partnership property, of which John Madden as a partner owned an equal undivided interest. The defendant was therefore in possession of the entire flock, as much so as New Madden. The part of the instruction last quoted substantially states that if the jury found the defendant “took” the sheep after New Madden had told him he could do so, and if it was further found that John Madden “accepted” the sheep pursuant to his agreement to pay the indebtedness mentioned, then a verdict should be returned for the plaintiff, improperly refers to taking and accepting the sheep, when that part of the charge should have alluded to the taking and accepting of the remaining undivided half interest in these animals, since prior thereto the defendant had taken possession of and was with New Madden holding the entire band of sheep. Though a verbal inaccuracy is to be found in the language employed in the instruction thus challenged, it is believed the jury were not misled thereby and clearly understood the meaning intended to be conveyed. No objection is to be found in the brief of defendant’s counsel to the terms so used.

6; The rule is established in Oregon that where a person as' a full or part consideration for an executed contract, promises another to assume, pay or discharge some legal debt or obligation- due from such other to a third person, the latter, though a stranger to the consideration and not an immediate party to the contract, may maintain an action thereon if the agreement was made directly or primarily for his benefit: Hughes v. Oregon Ry. & Nav. Co., 11 Or. 437 (5 Pac. 206); Schneider v. White, 12 Or. 503 (8 Pac. 652); Chrisman v. State Ins. Co., 16 Or. 283 (18 Pac. 466); Parker v. Jeffery, 26 Or. 186 (37 Pac. 712); Washburn v. Interstate Inv. Co., 26 Or. 436 (36 Pac. 533, 38 Pac. 620); Young Men’s Christian Assn. v. Croft, 34 Or. 106 (55 Pac. 439, 75 Am. St. Rep. 568); 48 Cent. L. J. 455; Feldman v. McGuire, 34 Or. 309 (55 Pac. 872).

In the case at bar New Madden’s transfer of his undivided partnership interest in and to the mortgaged sheep and lambs to John Madden, was a sufficient consideration for the latter’s agreement to assume and pay his brother’s indebtedness to the plaintiff, who can legally maintain an action thereon.

It follows that the judgment should be affirmed and it is so ordered. Affirmed. Rehearing Denied.