Clopper v. Poland

• Decision Date: 12 November 1881
• Citation: 10 N.W. 538,12 Neb. 69
• Parties: JOHN F. CLOPPER AND JONAS GISE, PLAINTIFFS IN ERROR, v. ALFRED POLAND, AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

10 N.W. 538

12 Neb. 69

JOHN F. CLOPPER AND JONAS GISE, PLAINTIFFS IN ERROR, v. ALFRED POLAND, AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

November 12, 1881

ERROR to the district court for Douglas county. Tried below, in 1878, before VALENTINE, J., of the sixth district. The opinion states the case.

REVERSED AND REMANDED.

Redick & Connell, for plaintiffs in error.

Promise is void, not being in writing. Gen., Stat., 393. [Comp Stat., Chap. 32.] Deposition of Elliott was inadmissible. And see also Second National Bank v. Grand Lodge, 8 Otto, 123.

Charles F. Manderson, for defendant in error, cited: Nelson v Boynton, 3 Met. 402. Shelton v. Brewster, 8 Johnson, 376. 2 Parson Contracts, 9.

OPINION

MAXWELL, CH. J.

In May, 1871, Fleury & Co. were indebted to the defendants in error in the sum of $ 489.30 upon an account. Fleury & Company at that time had extensive quarries near the mouth of the Platte river, and were engaged in burning lime and quarrying stone and selling the same to parties in Omaha. At the time above stated, the plaintiffs in error purchased all of Fleury & Co.'s interest in the stone quarry and lime kiln, and the defendants in error allege in their petition, and introduce testimony tending to prove that plaintiff in error assumed as a part of the consideration for said property said debt due the defendants in error, and promised to pay the same in lime. And they testify that in May and June of that year they received from the plaintiffs in error 950 bushels of lime, worth $ 279.00, upon said account, and that there is still due and unpaid thereon the sum of $ 272.30, with interest from August 1st, 1871. On the trial of the cause the petition was amended so as to state the original account against Fleury & Young. A verdict in favor of the defendants in error for the sum of $ 446.98 was returned in the court below, upon which judgment was rendered.

The plaintiffs in error contend that their promise is within the statute of frauds and void unless in writing. But if they assumed this debt as a part of the consideration for the quarry and lime kiln, and promised to pay the same, it thereby became their own debt. The promise if made, is an original one to pay the debt, and not a collateral promise in the nature of a guaranty. The distinction is well stated in Nelson v. Boynton, 44 Mass. 396, 3 Met. 396, where it is said: "The terms original and collateral promise though not used in the statute, are convenient enough to distinguish between the cases, where the direct and leading object of the promise is, to become the surety or guarantor of another's debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time with the promise...