1. Upon a careful examination of the whole evidence, we are satisfied no such clear case is presented of an insufficiеncy in the evidence to support the verdict as brings this case within the rule governing this court in granting a new trial upon that ground. Upon each matеrial fact controverted on the trial there was sufficient, in the nature and character of the testimony and evidence adduced, fаirly to raise an issue proper for the consideration of ’the jury, and its decision thereon is final.
2. The question referred to in defendant’s second point was objectionable, in that it called for the secret intention and understanding of the party in giving the notes, instead of the facts and circumstances connected with the transac
3. It is admitted by the pleadings, and was neither controverted nor sought to be, by either party at the trial, that, at the time the agreement sued on was entered into between plaintiff and defendant, the former was indebted to the state in a certain sum for stumpage on the logs so sold by him to defendant, and that, as part of the stipulated purchase price, defendant, by the terms of the agreement, promised the plaintiff to pay the amount of his said debt to the state, within a specified time therein named; and, though such time of payment had passed, the debt had not been paid by either party, but remained due and unрaid when the action was brought. Upon these facts, it was claimed by the defendant in his answer, and insisted on at the trial, as a defence, that thе plaintiff could maintain no action upon a breach of this stipulation of the defendant, until he had first paid the debt himself; because, under the rule laid down by this court in Sanders v. Clason,
The defendant’s undertaking ivas not one of indemnity. It was an affirmative, unconditional promise to the plaintiff, upon a valid consideration, to pay, within a specified time, a definite sum of money to a third party — thе state — for his benefit. Though, within the doctrine of the New York cases upon this subject, as well as our own, the state might have maintained an action against defendant upon a breach of its agreement, it is well settled, both upon principle and authority, that the defendant also remained liable to plaintiff, upon its promise, by privity of contract; and a cause of
The point is made in this court — and for the first time in the case, as appears from the record before us — that plaintiff ■cannot sustain a recovery for the broach of defendant’s stipulation, in this action, because of the insufficiency of the averments in the complaint. Conceding that the defect •complained of was' of a material character, and not cured by the admissions in the answer — which may be well doubted, under the decisions of this court in the cases of Estes v. Farnham,
4. No point is made in this court but that the law upon the subject of false and fraudulent representations, as applicable to the evidence, was correctly given by the court in its general charge to the jury, and, in our opinion, it fully covered the case. In the light of this charge, the jury could not have been misled, by the modification of defendant’s third request, to believe that false representations, positively made with intent to deceive, would not, when reliеd and acted upon, constitute good ground of action, even though not made upon personal knowledge. The purport of the lаnguage made use of by the court, in explaining and giving to the jury the defendant’s fourth request, was that the proposition therein contained was сorrect as confined to representations positively or unqualifiedly made, and that defendant had the right to rely upon them, unless ho had thе means of knowledge to the contrary then in his possession, or at hand and available. As thus understood, it was not objectionable.
The second request of plaintiff, as modified by the court involved no legal error, and there was some evidence in the-case in view of which it was рroperly given.
If plaintiff’s alleged misrepresentations in regard to the situation of the logs and the condition of the dams were positively and fraudulently made, under circumstances inducing a belief in their truth by defendant, then plaintiff' was responsible for any injury occasioned thereby, whether such statements were understood as made upon information derived from others, or from his personal knowledge; otherwise, however, if they wеre not so made, but were made under circumstances indicating only the expression of' a belief on the part of the plaintiff, founded upon information alone, and with no intention to deceive nor to vouch for the correctness of such belief. The character оf the.
Order affirmed.