9371 | S.C. | Apr 5, 1916
April 5, 1916. The opinion of the Court was delivered by I think the judgment below should be affirmed for these reasons:
When the facts are undisputed or susceptible of only one inference, it is a question of law whether the contract sued on is an original or a collateral undertaking within the statute of frauds. But where there is conflict in the evidence, or it is open to more than one inference, it is a question of fact for the jury. Lorick v. Caldwell,
The verdict of the jury, affirmed by the Circuit Court, establishes the fact that the contract here sued on was an original undertaking of defendant that he would be liable to plaintiff for the costs that would otherwise have been taxable against defendant's wife. It was not a collateral agreement to be security for payment by his wife, to pay if she did not, or to see that she should pay. According to plaintiff's testimony, defendant's wife was not liable to him at all, for he said that he told defendant that he would look solely to him for his pay. It follows that it was his own and not his wife's debt that defendant promised to pay. It may be conceded that the fact that the costs were taxed against Mrs. Blum in entering up the judgment was some evidence, tending to show that plaintiff did not look solely to defendant, but it does not by any means show that fact conclusively; nor does it show that she was liable to plaintiff for them, or that she could have been made to pay them. In Lorick v. Caldwell, supra, the goods were charged *222 on plaintiff's books to Hall, the man to whom most of them were actually delivered, and it was written on the books that payment of the account was "guaranteed by Caldwell." No doubt, that was evidence tending to prove that plaintiff did not look solely to Caldwell for payment, and that Caldwell's agreement was merely that he would guarantee payment by Hall, and was, therefore, collateral; but it was not conclusive of those inferences, and the case was submitted to the jury, which found the contrary. Such charges and entries on the creditor's books may be explained. 20 Cyc. 183. If entered in the judgment at all, the costs had to be taxed against Mrs. Blum, for this defendant was not a party to the proceeding; and doubtless they were formally taxed in the case for the purpose of letting defendant know the extent of his liability to plaintiff.
Nor does the fact that the statute makes the losing party liable for costs affect the question. The parties knew that to be the law. But plaintiff told defendant that he would not proceed with the case and do the work in reliance upon the statutory liability of Mrs. Blum. Thereupon defendant said to him, "Go ahead and do the work, and I will pay you." There was nothing collateral about that. It was a direct and original undertaking. Plaintiff certainly had the right to agree to waive Mrs. Blum's liability to him under the statute, and to look solely to defendant for his pay, and the verdict establishes that as what was done.
It is contended that, because defendant had no legal interest in the case, there was no consideration for his promise. No doubt, where the purpose of the promisor is to subserve some purpose of his own, the promise may be binding though it is in the form of a promise to pay the debt of another. But loss or detriment to the promisee is sufficient as a consideration as well as benefit to the promisor. Here, the doing of the work by plaintiff and agreeing to look solely to defendant for pay was a sufficient consideration *223
for defendant's promise. Ellis v. Carroll,
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES FRASER and GAGE concur in the opinion of the Court.
MR. JUSTICE WATTS dissents.