57 Minn. 133 | Minn. | 1894
The plaintiffs held the promissory note of one Andrew Larson, who died leaving the note partly unpaid. After the widow had applied for letters of administration, one of the plaintiffs had a conversation with her, in which it is claimed he told her he would have to file their claim in the Probate Court before he went to Europe. She answered that he need not; that she would pay it. “You shall not lose a dollar.” She repeated several times that she would pay it, and that he need not file it in the Probate Court, and he answered her, “Then I do not need to bring it to the Probate Court?” and she answered, “No, sir.” The plaintiffs, relying on her promise, did not file their claim against the estate until after the time for creditors to file claims had expired, and then they brought this action against the widow, alleging that they entered into an agreement with her whereby she agreed to pay to them the sum remaining due on the note, and in consideration thereof they “agreed not to file said note and claim in the Probate Court.” On the trial the only evidence given to prove this agreement was the conversation above stated. When the testimony was closed, the court ordered a verdict for the defendant, and from the judgment entered thereon plaintiffs appeal.
Plaintiffs do not claim to recover on the theory that the defendant Anna Larson guarantied the payment of this debt, which would require a new consideration, and a written guaranty expressing that consideration, to take it out of the statute of frauds; but they claim against her on the theory that she became substituted as the debtor; that she promised to pay the debt, and in consideration thereof they agreed to release the estate of her husband.
There is sufficient evidence to show that she promised to pay the debt, but we are of the opinion that there is not sufficient evi
The judgment below should be affirmed. So ordered.
(Opinion published 58 N. W. 687.)