McIntire v. Schiffer

31 Colo. 246 | Colo. | 1903

Mr. Justice Gabbert

delivered the opinion of the court.

It is not necessary to determine whether or not the amended complaint changed thé cause of action. Appellant did not raise that question in the- trial court. She answered, ánd went to trial without a suggestion or objection that a new cause of action had been introduced by the' amended complaint; consequently, the point now made cannot'be considered on appeal.—King v. Rea, 13 Colo. 69.

The alleged error of the trial court in admitting incompetent testimony is based upon the reception of what Albert W. Mclntire stated to-one of the appellees relative to the arrangement he had made with Mrs. Mclntire, to convey her his property. As an independent conversation this testimony may have been incompetent, but where, as in this instance, it was communicated to appellant, as claimed by the witness, and she stated that such- an arrangement had been effected between herself and' husband, and it formed the basis of an arrangement between the plaintiffs and herself to the effect that she would carry out the agreement and pay the note from money to be borrowed on the lands conyeyed to her, it was competent for tlie purpose of establishing the mutual arrangement claimed by plaintiffs to have been entered into between the parties to this'action and Albert W. Mclntire. It is also claimed that the court erred in allowing the witness to testify that at the time of this conversation between himself and -Mrs. Mclntire, it was the intention of plaintiffs to attach the property of Albert W. Mclntire, if appellant had not assured him of the arrangement between herself and husband, and promised to assume and pay the note. This may have been incompetent, but clearly it could not affect the issues between the parties, and therefore was not prejudicial.

The important questions are those argued by counsel for appellant in support of their contention that the court erred in rendering judgment for plaintiffs. They contend that the evidence, wholly fails to establish that plaintiffs accepted appellant as their debtor in lieu of the maker of the note, and that her promise, if any, to discharge the indebtedness thereby represented was within the statute of frauds. The principle of novation is not necessarily involved, and the real question is, whether or not the evidence establishes an agreement between the plaintiffs, appellant and the maker of the note, which rendered appellant liable for the indebtedness represented by such note. If this agreement embraced nothing more on her part than a mere verbal promise to pay that indebtedness, then it is within the statute of frauds, and cannot be enforced.. On the other hand, if the real substance, of her agreement was to perform an obligation growing out of the transfer of the lands to her, then her promise to perform that obligation was her own, and therefore not within the statute of frauds, though in form it may have been an agreement to discharge that indebtedness, and the result of its performance is to discharge it. — 8 Enc. Law, 1st ed. 678. The court found, as' a mixed question of law and fact, that the agreement between plaintiffs and defendant constituted an original contract, and therefore was not within the statute of frauds. The evi-. deuce is certainly sufficient to sustain this conclusion. There was testimony to the effect that the maker of the note had agreed with appellant to transfer lands in his name to her, upon which she was to borrow money and discharge his note due the plaintiffs, and that the latter had accepted this arrangement. There is also testimony to the effect that she agreed with the plaintiffs, when such transfer was made, to borrow money, to pay them-this note. Her letters to them on the subject indicate that she recognized she was under obligations to them- with respect to this note on account of the conveyance of'the land from Albert W. Mclntire, for she informed them that she was not going to get away with the land, or do anything which would interfere-with their interests, and that a loan was being negotiated with which to take up both notes. Her letters to this effect were written after she had received a conveyance of the land from-Albert W. Mclntire. She has negotiated a loan upon these lands in connection with her own which was more than sufficient to discharge the notes against herself and Albert W. Mclntire, which were held by the plaintiffs. The agreement between the parties may not have discharged the maker of the note, but that is immaterial. By accepting a conveyance • of the land, and negotiating a loan thereon under an agreement with the plaintiffs and the maker of the note that she would discharge the note of the latter held by the former out of the money thus realized, she agreed to perform an obligation of her own, resulting from an original transaction to which she was a party. While this agreement was, in effect, a promise to pay the debt of another, and the result of its performance will have this effect, it was nothing more than a promise to- perform an obligation in consideration of which the lands were conveyed to her by Albert W. Mclntire. This, as the trial court held, constituted an original contract upon her part not within the statute of frauds.—Green v. Richardson, 4 Colo. 584; Feldman v. McGuire, 55 Pac. 872; Gilmore v. Skookum Box Factory, 56 Pac. 934; Shufeldt v. Smith, 40 S. W. 887; Hilton v. Densmore, 21 Maine 410; Calumet Paper Co. v. Stotts Inv. Co., 64 N. Y. 782; Rothermel v. B. & Z. Coal Co., 79 Ill. App. 667; First Nat’l Bank v. Chalmers, 144 N. Y. 432.

The other questions argued on behalf of appellant are directed principally to those matters which might affect the credibility of the witness on behalf of the plaintiffs. We do not think it necessary to go into this question, because these were matters which it was the peculiar province of the trial judge to determine. They might be of special importance if it were true- that plaintiffs could not recover except upon the theory that they had accepted appellánt as their debtor in lieu of the maker of the note, but, as we have said, and as some of the authorities above cited hold, that question is not material, because, under the facts as found by the court,and as established by the record, appellant made the debt her own, irrespective of the liability of the principal debtor, and became primarily liable for its discharge. In such circumstances, the commencement of an action against Albert W. Mclntire was not á waiver of the right to hold her responsible upon her promise. Neither did the suit against Albert W. Mclntire preclude plaintiffs from enforcing their claim against appellant, in the absence of a showing that by suqb. action she was prevented from carrying out the arrangement under which the lands had been conveyed to her.

The judgment of the district eourt is affirmed.

Affirmed.