23 Minn. 542 | Minn. | 1877
As the case settled does not purport to contain all the testimony received below, we cannot consider plaintiff’s claim that the findings of fact are not supported by tlie evidence.
So far as here important, the findings of fact are as follows, viz.: Defendant had in his possession a threshing machine belonging to plaintiff-, which he at one time bad authority to sell. After the expiration of his authority, defendant, on August 22, 1872, sold the machine to Robbins, taking therefor his four promissory notes of that date, viz., one for $50, one for $130, and two for $250 each. The notes were payable to the order of defendant, and the throe last mentioned were secured by mortgages running to him. On August 27, 1872, defendant wrote to plaintiff, informing it of the sale, and enclosing the three last-named
At the time of making the sale defendant charged a commission therefor.
Defendant did not, at the time of transmitting the notes, transmit the mortgages, or execute any assignment of them, but in his letter informed plaintiff that the notes were secured by mortgage. Plaintiff received the notes so endorsed, retained the same without objection, and thereby ratified the sale. Defendant had no interest in the machine except as plaintiff’s agent, and except to reimburse himself for repairs and freight upon it, and he assumed to sell it on plaintiff’s account, and as its agent.
The notes -were taken by defendant without any purpose of acquiring any ownership in them for himself, and (except that he retained the $50 note on account of his commission, with plaintiff’s subsequent consent,) they were treated by 'defendant as plaintiff’s property, and as such transmitted to plaintiff. In compliance with plaintiff’s request, by letter of March 27, 1873, defendant, on April 1, 1873, sent the mortgages to plaintiff, and subsequently an assignment thereof running to plaintiff, and bearing the date last mentioned. This action is brought upon defendant’s alleged guaranty of one of the $250 notes.
As matter of law, the court below finds that “ the undertaking endorsed upon the notes, and upon which this action is sought to be maintained, was a special promise to answer for the debt or default of another, and, as such, within the statute of frauds ; and, the written promise not expressing any consideration, this action cannot be maintained.”
The finding of the law is right. From the facts found, it appears, first, that there was a debt owing- to jdaintiffs by Robbins, evidenced by his note; second, that the guaranty was a special promise by the defendant to answer for such debt of Robbins, which continued to subsist; third, that the
Order affirmed.
