Cramer v. Munkres

• Citation: 14 Wyo. 234,83 P. 374
• Parties: CRAMER v. MUNKRES, ET AL
• Decision Date: 16 December 1905
• Court: Wyoming Supreme Court

83 P. 374

14 Wyo. 234

CRAMER v. MUNKRES, ET AL

Supreme Court of Wyoming

December 16, 1905

ERROR to the District Court, Sheridan County; HON. JOSEPH L STOTTS, Judge.

The material facts are stated in the opinion.

Affirmed.

E. E Enterline and Alvin Bennett, for plaintiff in error.

The drawer of the order in suit, as well as the parties to the original contract with him were necessary parties, and in their absence no judgment could properly be rendered. No action can be maintained by an assignee of a part of a fund as it is contemplated that settlement be made with all the parties. (Price v. Elmock, 72 F. 610; 17 Ency. L., 536.) The fact that plaintiff claimed compensation for his services rendered it imperative that Holland, the drawer, be brought in as a party. A conditional promise to pay the debt of another is within the statute of frauds. (Clapp v. Webb, 52 Wis. 638; Barry v. Law, 89 F. 582.) It was incumbent upon the plaintiffs below to prove that there was a surplus in the fund applicable to the payment of the order in suit; and it was improper to make such proof by declarations of the defendant made before the order was given. Conversations prior to that time with defendant were improperly admitted in evidence. The findings are not supported by the evidence. There was no acceptance of the order on the part of defendant. (Thompson v. Wheatland Merc. Co., 10 Wyo. 86.)

The record in this case shows that Cramer acted in good faith in carrying out his various agreements with Holland. It also shows that he faithfully accounted for every cent that he collected and paid out. After he had advanced a great deal of money and given his time and attention in carrying out Holland's agreement with the Cattle Company, he was compelled to pay over to Redman the sum of $ 1,300.00, when as a matter of fact Holland is indebted to him in a much greater sum. In other words it is sought in this action and was so decided by the court that Cramer had to pay Holland's debts. This is certainly a novel method of settling accounts, and there is no certainty now but that Cramer will be subjected to another action brought by Holland for an accounting between them. This shows the great hardship that has been imposed upon Cramer, and the reasons are numerous why the judgment ought to be reversed.

W. S. Metz, for defendants in error, Munkres and Mather.

The drawer of the order in suit was made a party, and he filed an answer in the court where the action was originally brought. If the motion was not transmitted to Sheridan County, where the cause was taken for trial, the record is incomplete. All the parties to the original contract were also made parties, and the others interested in the fund; but as the latter had all been paid, it is clear that they were not necessary parties. The conversations with Cramer were all admissible, as they had reference to the fund in question, the amount thereof, and the prior claims upon the same. (Mitts v. McMoran, 31 N.W. 522; Hughes v. Fisher, 15 P. 702; Putney v. Farnam, 27 Wis. 189.) The contract to pay the order in question was not within the statute of frauds. (Welsh v. Kinney, 49 Cal. 49; Crosby v. Gewlmen, 37 Ind. 264; Crum v. Fitch, 53 Ind. 214; Rundy v. Rundy, 59 Ill. 98; Balliet v. Scott, 32 Wis. 174; Walton v. Manderville, 9 N.W. 913; Demalt v. Hardsell, 4 P. 1201; Wendell v. Hudson, 2. N.E. 303.)

One of the agreements of Cramer to pay the order in question was made at the time that Munkres & Mather agreed to receive the same, and to release Holland. This all took place at the same time and formed one agreement, and in that case it will be binding upon Cramer whether he had funds or not, and it would not be a collateral promise. It will also be observed that Cramer, in paying Munkres & Mather, would also be paying his own debt, not only on the promise he made to them, but in satisfying his obligation to Holland as well, and it ought to be a matter of indifference to him whether he pays directly to Holland or to Holland's assignee, for he would be compelled to pay the same sum that he would be complled to pay to Holland, and is only required to pay it once. Holland had already deposited this property and funds in Cramer's hands and he directed Cramer to pay out of this fund his, Holland's, debt, and Cramer thereupon promised to pay it to plaintiffs. All the authorities are to the effect that when one receives property or money or funds out of which he promises to pay a sum to another, the creditor of the depositor, the one to whom said payment is to be made may maintain an action thereon in his own name. This cannot injure the promisor. (Dearborn v. Parks, 17 Am. Dec., 208; Putney v. Farnam, supra; Dyer v. Gibson, 16 Wis. 566; Wyman v. Goodrich, 26 Wis. 21; McClellan v. Sanford, id., 595; McDaniels v. Maxwell, 21 Ore. 202; Pomeroy Eq. Jur., Sec. 1280; Brill v. Tuttle, 81 N.Y. 454; Bank v. Kimberlands, 16 W.Va. 555; Hutchinson v. Simon, 57 Miss. 628; Moore v. Lowery, 25 Iowa 336.) The agreement between the parties operated as an equitable assignment of the fund to plaintiffs. (Hall v. Flanders, 83 Me. 242; Phillips v. Edsall, 27 Ill. 535; Harlow v. Bayonne, 48 N.J. Eq. 246; Field v. Mayor, 6 N.Y. 179; Hall v. Buffalo, 1 Keys, 193; Jones v. Ferrill, 1 De Gex & J., 208; Brill v. Tuttle, 81 N.Y. 454; Harlow v. Bartlett, 96 Me. 294.) Parol evidence is admissible to show the purpose for which an instrument was executed. (21 Ency. L. (2nd Ed.), 1111.) Where a person having money belonging to another agrees with him to pay it to a third party, the latter may sue, and also where a party has money belonging to another in equity and good conscience the latter may sue. (Hines v. Holdship, 26 Am. Dec., 107; Brill v. Tuttle, supra; Leech v. Hill, 106 Iowa 171; Winburn v. Loan Ass'n, 110 Iowa 374; Mitts v. McMoran, 64 Mich. 664; Quinn v. Hanford, 1 Hill (N. Y.), 82; Durker v. Conklin, 13 Colo. App., 313; Hughes v. Fischer, 10 Colo. 383; Elmar v. Bank, 72 F. 610; Stevens v. Kyle, 57 Am. St. 854; Herter v. Goss., 57 N.J.L. 42; Arnold v. Lyman, 17 Mass. 400; Hall v. Marshalton, 17 Mass. 575; 2 Greenl., Sec. 109; Weston v. Barker, 12 Johns, 276; 1 Gray, 322; Bank v. Rice, 107 Mass. 37; McPherson v. Walton, 42 N.J. Eq. 282; Short v. Blount, 99 N. C., 49.)

Cramer's admissions at various times show that he had a surplus of funds with which to pay the plaintiffs upon the order given them. His admissions also dispute his claim for compensation for personal services.

We do not perceive upon what possible ground counsel for the plaintiff in error can insist that the costs, expenses and judgment in what is called the Redman suit, that was brought upon an agreement between Redman and Cramer individually, in which no one else took part or was interested, and which judgment, expenses and attorney fees all occurred at least two or three years subsequent to the giving and acceptance of the order in question, should be charged to the fund against which the order in question was drawn. If the fund could be charged with these expenses that occurred years afterwards, then no assignment of the fund in defendant's hands could be made; no order could be given against it, that would be of any value whatever, or have any binding force, and we think that the court below rightfully excluded all consideration of the Redman matter; and we fail to perceive where there is any principle of law or equity that would warrant the court in making any allowance for these attorney fees, costs, charges and judgment.

E. E. Enterline and Alvin Bennett, for plaintiff in error, in reply.

Counsel for defendants in error states that Cramer had agreed to pay the order in question, and that Munkres and Mather had agreed to receive the same and to release Holland. And it is contended that Cramer's promise became an original promise, and became binding upon Cramer whether he had any funds or not. In answer to this we insist that there is no testimony in the record supporting such contention. That testimony was excluded upon our objection. No recovery can be had in this case under the testimony, or rather upon the facts, unless it appears that Cramer has funds in his hands belonging to Holland, after paying all lawful claims due himself. The case of Thompson v. Wheatland Mercantile Co., cited in our former brief is decisive of the questions involved in this case as to Cramer's liability.

Cases are cited and discussed by counsel in support of the principle that where a person has money belonging to another and agrees with him to pay it to a third person the latter may always sue the former. That principle is elementary and we do not dispute the doctrine contended for. No authority, however, can be found which would compel a person to pay another under the circumstances as disclosed by this case. Cramer was to pay in the event that he had money in his hands, after paying several other claims, and all the indebtedness due him. As Holland owes him over $ 1,000.00, it is apparent that he has no money in his hands out of which to pay any of Holland's indebtedness.

BEARD, JUSTICE. POTTER, C. J., and VAN ORSDEL, J., concur.

OPINION

BEARD, JUSTICE.

The defendants in error, Munkres & Mather, commenced this action in the District Court of Johnson County, October 11, 1900, against the plaintiff in error, Newton E. Cramer, to recover one thousand dollars alleged to be due them from Cramer upon a certain written order. The case was transferred to Sheridan County and was tried to the court without a jury, judgment was rendered in favor of Munkres & Mather and against Cramer for $ 800.00 with interest and costs. A motion for a new trial was denied, exceptions taken and Cramer brings error.

The circumstances out of which the suit arose are substantially as...