Columbia Brick Works v. Freeman
| Decision Date | 06 July 1960 |
| Citation | 353 P.2d 620,223 Or. 109 |
| Parties | COLUMBIA BRICK WORKS, a corporation, Respondent, v. Joseph J. FREEMAN and Shirley Freeman, Appellants. |
| Court | Oregon Supreme Court |
Clifford E. Nelson, Portland, argued the cause for appellants. With him on the brief were Phelps, Nelson & Shepherd.
Roscoe C. Nelson, Portland, argued the cause and submitted a brief for respondent.
Before McALLISTER, C. J., and SLOAN, O'CONNELL, MILLARD and HOLMAN, JJ.
This is an action to recover the value of building materials furnished by the plaintiff to William D. Kayton, allegedly upon the promise of the defendant, Joseph J. Freeman, acting on behalf of himself and his wife Shirley Freeman, to pay for such materials.
The case was tried without a jury. A judgment was entered against both defendants. The trial court found that the defendants unqualifiedly agreed to pay for the materials delivered to Kayton. The sole question before us is whether there was sufficient evidence to support the trial court's conclusion. We are of the opinion that the evidence is sufficient to support the judgment.
The defendant rely upon ORS 41.580, which provides in effect that 'an agreement to answer for the debt, default or miscarriage of another' is void unless it is evidenced by a writing.
The testimony of one of the plaintiff's agents, if believed, would establish the fact that defendant, Joseph Freeman, orally promised to pay for the materials delivered to Kayton, and that the promise was made not as a guarantor but as a principal obligor, the plaintiff relying exclusively upon defendant's credit. On the basis of defendant's promise the plaintiff made further deliveries of materials used in the improvement of the property in which defendants had an interest. This was a direct benefit to the defendants. Such an agreement is not within the statute of frauds. Mackey v. Smith et al., 1892, 21 Or. 598, 28 P. 974; Harrison v. Birrell, 1911, 58 Or. 410, 115 P. 141. See, also, Eilertsen v. Weber, 1953, 198 Or. 1, 255 P.2d 150; Bryant v. Panter, 1919, 91 Or. 686, 178 P. 989.
Error is assigned for the trial court's failure to make certain findings of fact requested by the defendants. The trial judge made findings upon all of the material issues in the case. The requested findings would have added only a conclusion of law and a detailed recitation of evidence already covered by the court's statement of the...
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Romney Produce Co. v. Edwards
...and conclusion of the trial judge that Wyman's undertaking was original rather than collateral. The case of Columbia Brick Works v. Freeman, 223 Or. 109, 353 P.2d 620 (1960), also relied upon by appellant, was of similar posture. In both of these cases, the creditor had the benefit of a fav......
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Copenhagen, Inc. v. Kramer
...plaintiff cites Eilertsen v. Weber et al., 198 Or. 1, 255 P.2d 150, and in a memorandum of additional authorities, Columbia Brick Works v. Freeman et ux., Or., 353 P.2d 620, to sustain its position. In both those cases it was held that where there was a direct benefit to the defendants and ......
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