54 N.W. 1030 | N.D. | 1893
To reverse a judgment against him, based upon a verdict, the defendant and appellant assigns six errors: First, that the evidence was insufficient to support the verdict, specifying wherein it was insufficient; secoiid, that the complaint did not state facts sufficient to constitute a cause of action; third, error of the court in ruling upon the admission of evidence; fourth, error of the court in refusing to nonsuit, or direct a verdict for defendant; fifth, error of the court in refusing an instruction asked by appellant; and, sixth, that the verdict was contrary to the evidence and instructions. The second assignment is not well taken, and merits no discussion, beyond what is incidental to the disposition of the other assignments.
The respondents are husband and wife, and their complaint alleges that on and prior to April 5th, 1885, one Ober was indebted to respondents for work and labor performed for him at his request, in the sum of $400; that on said 5th day of April, 1885, and while said indebtedness was due and unpaid, the appellant, Aitchison, undertook and agreed to pay said respondents
Section 4277, Copip. Laws, reads: “A promise to answer for the obligations of another in any of the following cases is deemed an original obligation of the promisor, and need not be in writing: * * * (3) Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor, or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment, under an execution on a judgment obtained upon the antecedent obligation, or upon a consideration beneficial to the promisor', whether moving from either party to
It is earnestly contended that the evidence does not warrant a finding that any such promise was made. The court told the jury plainly that, if appellant incurred any liability to respondents, “it was by reason of some contract made on April 5th, 1885.” As to what occurred on that day, Mr. McMillan testified: “Mr. Aitchison wanted to engage me and my wife, and I told him we would not engage with any person until we got a settlement for the previous year. He said he had everything in that place in black and white, in his own name, but that Ober was to have an interest, but if we would stay he would pay the wages before Ober should have a cent on the farm.” This, clearly, was a conditional promise only, and before any recovery could be had thereon the existence of the specified conditions must be alleged and proven. Mrs McMillan testified as to the same transaction: “I was present during the conversation between my husband and Mr. Aitchison.
It is proper to add that the verdict of the jury may have been somewhat influenced b¡y reason of certain matters raised under the third assignment. One Bruce was called as a witness .for respondents. He seems-to have been the financial agent of Mr. Ober. He was asked whether or not, at any time during the summer of 1886, he received from Mr. Aitchison, for the credit of Mr. Ober, any money. This was objected to by counsel for appellant as irrelevant and immaterial, and the objection was overruled. In answer the witness said that in the summer of 1885 he received $575 from Mr. Aitchison for the credit of Mr. Ober; and by other questions, all answered against appellant’s objections, this.fact was made prominent before the jury. If respondents were seeking a recovery under the positive promise set forth in the complaint, — and under the instructions they could recover on no other ground, — it was entirely immaterial whether subsequent to such promise appellant paid Ober any money. He was equally liable whether he did or did not. Such fact had no possible bearing upon the issues made by the pleadings. And yet the prejudice to appellant of such testimony, after the evidence as to the contingent character of the promise had been given, is too evident for discussion. The admission of that testimony was