142 N.W. 255 | S.D. | 1913
Plaintiff Hollister brought an action against defendants Mary V. Sweet and Matilda Sweet, seeking the specific performance of an agreement whereby said defendants' had agreed to give plaintiff a note and real estate mortgage to secure certain advances to be made, and which it was alleged had been made by said plaintiff. Plaintiff Snelson brought another action against Mary V. Sweet and against Hollister, the plaintiff in the first-mentioned action, seeking to enforce a mechanic’s lien which he claimed against real estate of Mary V. Sweet. Defendant Hollister was made a party to this second action for the purpose of having said mechanic’s lien declared prior to any claim of Hollister against said land; the land being part of the land against which Hollister in her action was seeking to be decreed a mortgage lien. Snelson did not seek a personal judgment against Hollister. The two causes being pending at the same time, they were, by agreement of the parties and order of the court, consolidated and tried as one cause. Such trial was had before the court without a jury. The court made findings of fact which, so far as material to this appeal, were in substance as follows: Defendant Mary V. Sweet was the owner of two certain lots in Iroquois, S. D., and with her sister — the defendant Matilda Sweet —lived upon said property. Plaintiff Hollister was the owner of and ran a lumber yard at Iroquois; the same being managed by S. W. Hollister, her husband. Mary V. -Sweet entered into an oral contract with' plaintiff Hollister through her husband, under which Hollister agreed, provided plaintiff Snelson -secured the contract for rebuilding the house upon her lots, that she would furnish said Mary Y. Sweet the sum of $1,500 with which to pay for the necessary material and labor for the rebuilding of said house. Mary V. Sweet agreed to borrow said money from Hollister for said purpose, and, to secure Hollister for said amount, agreed to give her note for $1,500 payable on or 'before five years from the date thereof with interest at 10 per cent, per annum, payable annually, and further agreed to secure.said note by a first mortgage on the lots upon which the house stood. Mary V. Sweet
Upon these findings and conclusions decree entered against Mary V. Sweet, the decree conforming to such conclusions except thgt under such decree the $1,321.73 was to- bear interest from the 12th day of August, 1909, instead of the nth day of October, 1910, -thus doubling interest between August, 1909, and October, 1910. Mary V. Sweet moved for -a new trial. Her motion being overruled, she appealed to this court, assigning as error certain of the findings, the conclusion of said court to the effect that said plaintiff Hollister should pay to 'Snelson the said sum of $232.07, and that said sum should be added to the amount due Hollister and included in the decree herein, the granting of any decree in favor of Hollister, and the denial of appellant’s motion for a new trial. '
We have carefully considered the assignments relating to the insufficiency of the evidence to support the findings, and are satisfied that such findings are fully supported by such evidence, and further that no useful purpose could be subserved by a review of such evidence.
Snelson made no personal claim against Hollister, and, moreover, under the facts proven and under the findings of this court, he had no legal claim against her. Even disregarding that provision of our statute of frauds (section 1238, Civ. Code) declaring invalid an oral agreement to answer for the 'debt, default, or miscarriage of another, and treating the contract between Sw^eet and Hollister as though it had been in writing, yet section 1193 of the Civil Code provides: “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” And this court held in Fry v. Ausman, 135 N. W. 708, 39 L. R. A. (N. S.) 150, that in order for a third party, who claims that a contract has been made for his benefit, to recover under said contract of the promisor therein, it must appear, as stated in the statute, that such contract was made “expressly for the benefit of a [such] third party.” In the case before us, not only was there no finding that the said contract was made expressly for the benefit of Snel-son,- but it clearly appears that the evidence would not support any such finding, it appearing therefrom that the condition in said contract — under which Sweet was to have Snelson repair said house — was one made for the benefit of Hollister rather than Snelson.
It follows that the judgment appealed fiom should be modified by striking from the provision directing Hollister to pay Snelson
And so modified the judgment is affirmed without costs.