Olson v. McQueen, 139 N.W. 522

Olson v. McQueen

139 N.W. 522 | N.D. | 1912

Bruce, J.

(after stating tbe facts as above). Tbe first point for determination is whether the agreement for tbe sale of tbe one-tbird interest of tbe defendant, McQueen, in tbe threshing machine in question for tbe agreed price of $832, created an original contract of tbe said McQueen, Jacobson, and Munyon to pay for tbe same, or merely a promise on the part of tbe three to answer for tbe debt, default, or miscarriage of another (Munyon), within tbe meaning of tbe statute of frauds, it being remembered that that other was one of their own number. We are also to determine whether tbe agreement was incapable of being performed within a year, so as to come within tbe statute of frauds.

It seems to be well established by tbe authorities that where a sale of goods is made upon tbe joint credit and promise of three persons, though tbe property is furnished and delivered to but one of them, tbe legal effect as between them and tbe vendor is a sale to them jointly, and that such a promise is an original one, and not within the statute of frauds. Smith, Frauds, § 331; 20 Cyc. 184; Boyce v. Murphy, 91 Ind. 1, 46 Am. Rep. 561; Gibbs v. Blanchard, 15 Mich. 292. In order, indeed, that the promise shall be considered a promise to answer for the debt or miscarriage of another, it must be collateral to some other or prior promise. The statute does not extend to a joint understanding of two or three persons for the benefit of one of them, unless such one was indebted or had promised before the joint understanding had been arrived at. 29 Am. & Eng. Enc. Law, 924; Street, Foundations of Legal Liability, 186; 1 Brandt, Suretyship & Guaranty, p. 183. Applying these tests, we are satisfied that the offer of proof presented an original promise, and not one that was collateral and within the slat-*216ute. The mere fact that in it counsel for defendant stated that the interest in the machine was “sold and delivered to William Munyon” is in no way conclusive, as these words are controlled by the remainder of the offer, which states positively that the sale or delivery was a part of a joint agreement. The offer, in fact, specifically states that “said William Munyon and this defendant met at defendant’s farm in Steele county, and entered into an agreement, whereby defendant sold and delivered his one-third interest in and to said threshing machine to the said William Munyon for the agreed price of $832, which it was Then and there’ agreed upon by and between the aforesaid' parties, meaning this plaintiff and the defendant and the said R. d. Jacobson and William Munyon, should be paid to this defendant by the said plaintiff and the said B. J. Jacobson and William Munyon as partners and owners of the aforesaid threshing rig. . . . That pursuant to said agreement the defendant delivered his said interest in said threshing rig to this plaintiff cmd to the said B. J. Jacobson and William Munyon, and that the last three parties did thresh defendant’s grain in the fall of 1908.” This offer of proof clearly intimates an original, and not a collateral, agreement. We think the court erred in rejecting the offer, and that it also erred in refusing to allow the plaintiff to answer, on cross-examination, the following questions, which were objected to on the ground that they sought to disclose a contract which, if made, was required to be in writing: These questions were r “Didn’t Mr. McQueen, at the time you four people were together, tell you and Mr. Jacobson that he would not sell the rig to Munyon unless all three of you people would agree and thresh for him in these two falls of 1908 and 1909 ?” And, “Didn’t you and Mr. Jacobson agree then that if Mr. McQueen would sell his one-third interest to Munyon, to-do his threshing for him in the fall of 1908 and 1909 ?” “And on the strength of the agreement that you had made there, didn’t Mr. McQueen deliver his one-third interest in the rig to Mr. Munyon ?”

The whole question at issue was whether the promise of the three, Olson, Munyon, and Jacobson was an original or a collateral one. The questions excluded were certainly directed to this point of inquiry, and were both competent and material.

But counsel for respondent argues that, in order to reverse the judgment, this court must presume a joint liability of Munyon Olson, *217and Jacobson, and that defendant and appellant now seeks to counterclaim tbis joint liability against but one of tbe three parties, Olson, wbo is tbe sole plaintiff in tbe suit. He contends that, by so doing, defendant seeks, in one breatb to call tbe liability joint and joint and several. We do not deem tbis to be material. Tbe question is not so-much as to whether tbe liability of Munyon and Jacobson and Olson was a joint and several liability, but whether it was an original one. 20 Cyc. 184. But even if it were considered to be joint, and not joint and several, we do not believe that tbe objection would be valid. Plaintiff sues in this case under tbe Code, and as tbe real party in interest. That is to say, as tbe assignee of a claim held originally by himself and two others. At tbe common law be would have been compelled to bring tbe action in tbe names of bis assignors, and if be bad done so tbe right to tbe counterclaim for damages arising from tbe joint default in tbe contract would have been unquestionable. In cases where tbe assignee sues under tbe Code as tbe real party in interest, be assumes tbe obligations as well as tbe claims of bis assignors. Tbis is too clear for argument. It is quite possible that tbe defendant need not have counterclaimed at all. He might, no doubt, have allowed a judgment to be recovered against him for tbe balance claimed to be due upon tbe threshing bill for 1908, and then, in a separate action, have sued tbe three original promisors for tbe failure to do tbe threshing in tbe year 1909; but be did not, and was not required to do so. We think that tbe counterclaim was properly interposed. Eev. Stat. 1905, § 6808; 34 Cyc.N46, m.

Nor do we believe that tbe contract was within tbe statute of frauds, because by its terms it was not to be performed within one year from tbe making thereof. It is conceded, indeed, that it was fully executed, on one side, by tbe delivery of tbe interest in the machine. According to tbe overwhelming weight of authority, tbe statute has no application in such cases; and though a few states bold to tbe contrary, we prefer to follow tbe majority and almost universal bolding. 29 Am. & Eng. Enc. Law, 835, and cases cited.

Tbe judgment of tbe District Court is reversed, and tbe cause is remanded for a new trial.