Nordby v. Winsor

24 Wash. 535 | Wash. | 1901

Per Curiam.

This cause was begun in the superior court of King county. The amended complaint alleges, in substance, as follows: That one Barlow was the owner and master of the schooner “Port Admiral”; that as such owner and master he transported lumber for the respondents upon said schooner from Seattle, Washington, to Port Wrangel, Alaska; that the freight charges for such transportation amounted to $396.90, which sum the respondents were owing to said schooner, and the said Barlow, as owner thereof; that the'said Schooner, and the said Barlow, as owner thereof, were indebted to appellant, Bordby, in the sum of $38, and were' likewise indebted to Sunde & Erland, sailmakers, in the sum of $212; that an agreement was made between the said Barlow and respondents by which respondents promised and agreed to pay to Bordby the said sum of $38, and to Sunde & Er-land the said sum of $212; that as a part of said agreement respondents were to receive and did receive credit upon the said sum of $396.90 for the amounts due Bordby and Sunde & Erland, as aforesaid; that at the time of making said agreement, and as evidence thereof, a contract in writing was entered into between the said Barlow and respondents covering the matters hereinbefore stated, a copy of which contract is attached to the complaint as an exhibit; that before the institution of this action said Sunde & Erland duly sold and assigned their said claim to appellant, Bordby, for a valuable consideration, and that he is now the owner and holder thereof. The complaint, as drawn, states two causes of action, based, respectively, upon the items of $38 and $212 aforesaid. A demurrer was interposed to each of said causes of action, and was by the court sustained. The plaintiff elected to stand upon his amended complaint, and thereupon judgment was entered dismissing this cause with costs taxed against plaintiff. Erom this judgment the plaintiff appeals.

Bespondents’ counsel argue that the contract set out in the complaint falls within the statute of frauds, as being a promise to pay the debt of another. We think not. The averments of the complaint show that respondents agreed with Barlow and promised him to pay the claims here sued upon in consideration of receiving from Barlow credit upon respondents’ debt to him for the amount of these claims, and that such credit was given. The promise of respondents to pay the debts of Barlow due to Bordby and Snnde & Erland was founded on consideration moving from Barlow, and while, incidentally, the fulfillment of the promise would extinguish the debt of another, yet it was an original promise to pay respondents’ own debt, and the beneficiary of the promise may maintain an action thereon. This rule has already been announced by this court. See Gilmore v. Skookum Box Factory, 20 Wash. 703 (56 Pac. 934); Don Yook v. Washington Mill Co., 16 Wash. 459 (47 Pac. 964).

If the complaint in this case stated a contract within the statute of frauds, then there might be some question as to the sufficiency of the written memorandum to bind respondents. The contention that it is too ambiguous to be construed as a promise to pay these debts of Barlow would then call for consideration. But, as we view the complaint, it shows a contract entirely without the statute of frauds, and which was binding upon the respondents regardless of the writing.

We think the court erred in sustaining the demurrer. The judgment is therefore reversed and the cause remanded, with instructions to the lower court to overrule the demurrer.