53 Iowa 37 | Iowa | 1881
Whatever promise Hill made was verbal. The question as to whether it is within the statute of frauds or not has been discussed by counsel with much learning and ability. The court below held that it was not, but that Hill was discharged by reason of the settlement, and accordingly denied the plaintiff’s right to recover, so far as this claim is concerned. This constitutes the ground of the plaintiff’s complaint.
As to whether the promise was within the statute of frauds
Upon what ground the court allowed a recovery in the absence of an order for payment from Rossiter & Manuel, after finding that the defendant’s agreement was to pay upon the order of Rossiter & Manuel, does not appear. The plaintiff insists that he was entitled to a judgment, notwithstanding he obtained no order from Rossiter & Manuel, because he was prevented by Hill from obtaining the order.
The facts appear to be that the plaintiff performed his contract with Rossiter & Manuel, but only a part of the timber
The fact doubtless was that Rossiter & Manuel expected that the plaintiff would be paid out of money that would otherwise come to them under their contract with Clark, Hill, Thompson & Co., and that they declined to give the order if one was demanded because at the time it was demanded there was nothing due them from Clark, ITill, Thompson & Co. But Hill’s liability under the findings was independent of such fact. His liability rested solely upon his agreement to pay Rossiter & Manuel’s orders, and it was his right to refuse to pay except upon their orders. ITill needed their orders in order to justify him in charging them with such payments as he should make, and he did not need the orders less because there was nothing due Rossiter & Manuel from Clark, Hill,
Reversed.
SUPPLEMENTAL OPINION.
The plaintiff in a petition for a rehearing insists that Htill was not released by reason of the plaintiff’s taking a time note from Thompson. He insists that the evidence shows that the note was taken with Hill’s knowledge and consent. If there had been an undisputed liability upon the part of Hill for the whole debt, we think that Hill would not be released by the mere extension of time to Thompson, if done with Hill’s consent. But Hill claimed that he was liable for only one-lialf; and when the plaintiff accepted from each a promissory note in accordance with Hill’s theory of their respective liabilities Hill had a right to assume that no claim could be asserted against him thereafter for. the part covered by Thompson’s note. A new contract was entered into; what before was an open account payable on demand became merged in the notes payable on time. Hill’s exemption from further liability should not, we think, be placed so much upon the ground of release by extension to Thompson as upon the ground of a settlement and substitution of a new contract which embraced among other things an extension to Thompson.