Tuttle v. Welty, No. 5706

No. 5706 | Colo. | Apr 15, 1909

Mr. Justice Campbell

delivered the opinion of-the court:

John Welty, plaintiff, brought this action against Watson P. Tuttle, defendant, in a justice’s court,-to recover for a balance wbicb be claimed to be due bim from defendant on an account for grain sold and delivered. Plaintiff bad judgment there, and also on appeal in tbe county court, and defendant is here with bis appeal. There is no doubt that defendant promised to pay plaintiff for tbe grain in question, but defendant says bis promise was collateral, not direct, a promise to pay not bis own, but another’s, debt, and as tbe promise was not in writing, as sec. 2025, Mills’ Ann. Stats., requires, be is not bound by it. As preliminary to tbe main discussion, we note and dispose of several minor objections.

Defendant says that tbe transaction was not a sale at all, because the price of tbe commodity was not specified, tbe amount of sale uncertain, and tbe time of payment not fixed. There is evidence tending to show that tbe price was to be tbe market price. Tbe quantity of grain was shown, hence tbe amount is a matter of mathematical calculation. This transaction was one of several similar ones between tbe parties, and tbe court was justified in inferring from facts in evidence that tbe time of payment was at tbe convenience of defendant. Were this not so, time not being fixed, tbe law presumes a reasonable time. There were objections by defendant to tbe evidence wbicb tbe court overruled. The trial was to tbe court, without a jury, and we do not see bow it is possible for tbe defendant to be prejudiced by tbe rulings complained of. Tbe parties are in accord that tbe court made a mistake in admitting a letter written to plaintiff by one of defendant’s witnesses. Without deciding that this letter was improperly introduced, we are entirely clear that it was not prejudicial to defendant, as it does not seem to have any material bearing upon tbe issues, and tbe other evidence in tbe record warrants tbe judgment.

To a proper understanding of the principal point raised by defendant, that he cannot be held to his promise because it was to answer for the debt of another, and was not in writing, a summary of the pertinent evidence follows: Thomas Chambers, who was working for defendant, and had in a growing crop on defendant’s lands, came to plaintiff’s home, the parties being farmers, for the purpose of buying grain. He did not have the money to pay for it, and plaintiff refused him credit. Upon an inquiry by Chambers if credit would be extended if defendant would stand good for the bill, plaintiff replied that it would. Soon after this conversation, Chambers again appeared at plaintiff’s farm, and reported to plaintiff that defendant said he would* stand good for the payment of the grain which was wanted; whereupon plaintiff delivered it to Chambers, and charged the amount of the sale to defendant. After this transaction between plaintiff and Chambers, plaintiff saw defendant and told him what had taken place, and asked him if it was all right, to which, in substance, defendant said that it was. Thereupon plaintiff told defendant that Chambers wanted more grain, and asked if he should let him have it in the same way, and with the same understanding, to which defendant replied to let Chambers have it, which plaintiff did. About the same time, defendant himself bought some grain of plaintiff for himself and for his brother, Ed Tuttle, and the amount of the purchase was charged to defendant’s account. Defendant, at the time, took away part of the grain, and said that his brother Ed would call for the balance, which he did, and plaintiff delivered it to him. At one or more times, subsequent to these transactions, plaintiff requested payment of defendant, and, according to plaintiff’s statement, no claim was made by defendant that he was not holden for the balance due, but be requested plaintiff to extend for one year tbe time of payment, wbicb be did; after tbe expiration of which time tbis action was brought, defendant refusing to pay, to recover tbe balance due on grain delivered to Chambers and Ed Tuttle.

There can be no doubt that tbe judgment is right as to tbe grain delivered to Ed Tuttle, and we decline even to discuss tbe point. There is a material conflict as to some of tbe foregoing facts concerning the Chambers grain, but tbe court beard tbe witnesses and gave credit to plaintiff’s version, with wbicb adjustment of tbe conflict we cannot interfere. Assuming, therefore, tbe truth of such facts, we are clearly of opinion that tbe promise of defendant, as to tbe Chambers branch of tbe case, was not collateral. Plaintiff refused to extend credit to Chambers, and did not deliver the grain until after it was reported to him that defendant would stand good for it; and at tbe subsequent interview between plaintiff and defendant, tbe latter did not deny that be bad told Chambers that be would be bound. On another ground, defendant is liable. Had be wished to escape liability because bis promise was collateral, and not direct, tbe time for him to do so was at tbis interview. Defendant’s conduct at that time is in law a ratification, even if be did not, in tbe first instance, tell Chambers to buy tbe grain on bis credit. Defendant bad full knowledge of tbe transaction, and approved and ratified Chambers ’ act, and made it bis own. On tbe strength of Chambers’ statement to plaintiff that defendant would stand good for tbe grain, plaintiff delivered it to Chambers, and made a charge against defendant for it. Defendant knew that credit was extended to him, not to Chambers, and when tbe facts were brought to bis attention, by bis conduct and statements be acquiesced therein, and thereby ratified and made Chamhers’ acts his own. — 23 Am. & Eng. Enc. of Law (2d. ed.), p; 889.

The judgment is clearly right, and it is affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice White concur.