44 P. 382 | Or. | 1896
after making the foregoing statement, delivered the opinion of the court.
The question presented by this record is, whether the alleged agreement between the plaintiff and defendant “ that the liability of plaintiff should be a one third proportion and that of the defendant should be
The earliest case to which our attention has been called is that of Thomas v. Cook, 8 B. & C. 727. It
The authorities among the states of this country
The leading and perhaps the best considered cases to be found which follow in the wake of Green v. Cresswell and Kingsley v. Balcome, are Easter v. White, 12 Ohio St. 219; Bissig v. Britton, 59 Mo. 204 (21 Am. Rep. 379); Macey v. Childress, 2 Tenn. Ch. 438, and Nugent v. Wolfe, 111 Pa. St. 471 (56 Am. Rep. 291). The Ohio case was decided long prior to the English case of Wildes v. Dudlow, while the Missouri case was almost concurrent in time with it, but without knowledge of its announcement and was not in any manner controlled by it. The other two cases cite it with disapproval. The clearest illustration of the principle maintained by these cases is to be found in Nugent y. Wolfe. The First National Bank of Eayenna, Ohio, had obtained judgment against Powers and Company. Nugent went security for Powers and Company, as he alleges, at the request of Wolfe, accompanied with a verbal undertaking, or agreement to save Nugent harmless in his undertaking for Powers and Company
The cases which are usually classed as following Thomas v. Cook and Chapin v. Merrill may be subdivided into three classes, in consideration of the grounds upon which each is apparently sustained. First — It is held that where the inducement for the promise of indemnity is a benefit to the promisor which he did not before or would not otherwise enjoy, as where he has a personal, immediate, and pecuniary interest in the principal transaction, and is therefore himself a party to be benefited by performance on the part of the promisee, the contract is not within the statute and may be supported by a verbal undertaking. In reality the undertaking is to pay a debt which is, in substance, the debt of the promisor: Smith v. Delaney, 64 Conn. 264 (42 Am. St. Rep. 181, 20 Atl. 496); Davis v. Patrick, 141 U. S. 479 (12 Sup. Ct. 58); Reed v. Holcomb, 31 Conn. 360; Potter v. Brown, 35 Mich. 274; Hilliard v. White (Tex. Civ. App.), 31
It is within this latter class that the case at bar must be grouped. The authorities have not concurred entirely in the reasoning which is supposed to support the doctrine upon which these cases proceed. Chancellor Cooper in Macey v. Childress, 2 Tenn. Ch. 438, says they “may be safely rested on the well established doctrine that a surety may by parol limit the extent of his liability as between him and the other parties to the paper.” Mickley v. Stocksleger, 10 Pa. Co. Ct. Rep. 345, distinguishes Nugent v. Wolfe, 111 Pa. St. 471 (56 Am. Rep. 291), in that the latter case “was in no way connected with the original cause of action; he was not a party liable, and it did not appear that he had any personal interest in the judgment on which the plaintiff was the only bail for the stay of
Now as to the question whether, in view of the evidence, the court erred in taking the case from the jury and sustaining the motion for nonsuit. Without intimating any opinion as to the weight and effect to be given to the testimony, that being a matter for the jury to determine, and without recapitulation here, let it suffice to say that we deem the evidence introduced competent and sufficient to go to the jury for their consideration whether or not there was such an agree
Reversed.