112 P. 711 | Or. | 1911
delivered the opinion of the court.
“In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law. * * 2. An agreement to answer for the debt, default, or miscarriage of another.”
This is not an action directly against the defendant as an undisclosed principal for whom an agent contracted. Manifestly the complaint proceeds upon the theory that the original obligation was one personal to Hopkins, and that subséquently the defendant assumed that obligation. If the plaintiff had proceeded against the defendant as an undisclosed principal, he should have alleged that the original contract was made directly by the defendant.
These features clearly distinguish the case at bar from the Schreyer case, and strips it of every question except the one already indicated, namely: Did the plaintiff comply with the statute of frauds in endeavoring to prove his allegation that the defendant assumed the obligation of Hopkins and agreed to pay it?
We are of the opinion that the testimony of the plaintiff wholly fails to meet the requirements of that statute, and that the court below should have allowed the defendant’s motion for a nonsuit.
The judgment of the circuit court is reversed, with directions to enter a judgment of nonsuit in favor of the defendant. Reversed With Directions.
On Motion to Modify.
Opinion Per Curiam.
In view of the consequences apprehended, the order directing a nonsuit will be set aside, and the cause is remanded for such further proceedings as may be necessary. Reversed : Remanded.