Argued
October 5, 1892
Appeal, No. 155, Oct. T., 1892, by defendant, J. A. Timlin
from judgment of C.P. Jefferson Co., Feb. T., 1889, No. 174
on verdict for plaintiff, John Elkin.
Assumpsit
on parol promise to pay judgments against L. S. Watt.
At the
trial, before WHITE, P.J., of the 40th judicial district
specially presiding, it appeared that the defendant and L. S.
Watt were cotenants in a tract of land. Defendant contracted
to sell his own and Watt's undivided interest in the land
to plaintiff. Evidence for plaintiff tended to show that when
Watt's deed was tendered to plaintiff he objected to
taking it through fear of judgments binding the land.
Defendant being anxious to sell the land, then said to
plaintiff: "I will stand good to you for all judgments
against Watt." The land was subsequently sold on a
judgment against Watt, and plaintiff bought it in. He then
brought this suit to recover the amount that he paid the
sheriff.
The
court admitted, under objection and exception, the deeds from
defendant and Watt to plaintiff; also record of judgment
against Watt, on which the land was sold, and the
sheriff's deed to plaintiff. [7-10]
The
court charged in part as follows:
"The
deed, however, which J. A. Timlin made to John Elkin, and the
deed from L. S. Watt to John Elkin -- which have been read in
your hearing -- are deeds which have no covenants of the
character we have indicated to you. They are what are called
quitclaim deeds, or deeds of release, by which the releasor,
or person executing the deed, releases or quitclaims to the
person to whom the deed is so made, all the interest and
title they have in the land, and these are, ordinarily, made
to some person who has other interest in the land. If the
matter, then, rested here upon the face of the deeds alone,
the plaintiff would have no standing, even though the
interest of L. S. Watt, which was so released to him on the
15th day of May, 1886, would be lost to him entirely, and he
would be without any remedy of indemnity or reimbursement for
the expenses he was put to incident to it, unless there was
some contemporaneous parol or verbal agreement about
it." [11]
The
court, after referring to the promise of the defendant to pay
Watt's judgments, continued as follows:
"For
the purposes of this case and to avoid confusion, we may say
one instance, the proper one for us to consider here, exists
where the promisor or party sought to be charged has himself
become the actual debtor by reason of the transaction,
although a third party may be the debtor; so that, as between
him and the original debtor and the person seeking to enforce
the promise, his real liability is superior to that of the
original debtor. In such instances, the promise of this third
party becomes an original undertaking. To make it plainer,
where a party may be the defendant in a judgment, for
instance, and a third party, outside of that defendant, has
dealings with another party about a matter that that judgment
affects, if this third party makes a promise to the party
with whom he is dealing to protect him against the liability
of this debtor, he can make himself liable for this debtor --
the defendant in the judgment -- notwithstanding he does not
put it in writing, if the transaction partakes of an original
undertaking. [12] . . . .
"If
it should be found by the jury that the defendant did sell
these two interests to the plaintiff and did agree to
indemnify him in the manner claimed by the plaintiff, then he
would be liable as on an original undertaking. If, on the
other hand, he merely sold his interest in the land and
Labana Watt sold his interest at the same time, each making a
deed, and there was no original undertaking upon the part of
Mr. Timlin in selling or in making the transaction for both
interests with John Elkin, if that was the way of it, and he
may have said that he would stand good for any judgment
entered against L. S. Watt, still he would not be
responsible, unless he was the person who sold the two
interests and with whom John Elkin was dealing. So you will
observe the question in dispute in this connection. . . .
[13]
"Did
J. A. Timlin sell this land, these two shares to the
plaintiff? Was he the contracting party? Did he make the
representations and the guarantee to be responsible for the
encumbrances against L. S. Watt's interest or not?
Discover how that is; that is your duty. [14]
"Another
principle of law has been invoked here; that is the principle
that obtains as to testimony being clear, precise and
indubitable before there could be a finding for the
plaintiff. Now, that is a principle of evidence that is
applicable where a contemporaneous verbal contract is set up
with a written contract. To make it plain; when a written
contract is made between the parties and it is alleged by one
of the parties to it that he would not have entered into it
if it had not been for the verbal agreement made
contemporaneously or at the same time with it, why it is
incumbent upon the party so setting up that parol agreement,
which may alter, change or vary the writing, to establish it
by evidence clear, precise and indubitable. That is the rule
or standard or quality of the testimony. We recognize the
force of that rule. We may say that we do not think that
principle obtains here, for the reason that here is a deed of
release executed by Labana S. Watt for the interest in the
land about which we are inquiring and against which this
judgment was executed. There was no writing between Mr.
Timlin and Mr. Elkin. The contract was made verbally. Mr.
Timlin made his deed; Mr. Watt made his deed. I am now
speaking of the writing alone, to avoid any confusion, we
have no reference to the testimony about there being an
alleged parol agreement. I am speaking now only of the deeds.
Now, Mr. Timlin did not sign any writings about Watt's
deed; and, to establish that rule here, we would have to
require that Mr. Timlin should have written in that deed of
Watt the alleged guarantee. Consequently, we do not think
that rule applies. But the jury must be satisfied, from the
weight of the testimony, as we have instructed you, that Mr.
Timlin sold this land, these two shares to Mr. Elkin, and
that he made the guarantee or the agreement to stand good for
it; you must find that from the weight of the testimony. [15]
. . . ."
At the
request of the jury for additional instructions the court
charged as follows:
"We
explained to you the statute of 1855, which regulated a
verbal promise by a third party to pay the debt of another.
That is to say, we explained to you that, where A. had a
judgment against B., or an account against B., and C
promised to see it paid or be responsible for it, that
promise, if the amount was over $20, would not be good unless
it was in writing. We explained that, and repeat it to you
now. If, however, the third party -- take the instance of C
-- A. having a judgment against B., and C., a third party,
promises to be responsible for the judgment, his promise or
agreement so to do would be binding if it becomes what is
called 'an original undertaking;' that is to say, if
he makes the debt his own or assumes liability for it between
himself and another party interested in it. He may make it an
original undertaking of his own and relieve it from the
prohibition of not being in writing and make it good. [16]
"Now,
then, to apply that principle, we said here that if Mr.
Timlin sold these two interests to Mr. Elkin, or, in order to
effect the sale of his own interest to Mr. Elkin at the time,
said that he would stand good for any judgments or any
incumbrances against L. S. Watt, and Mr. Elkin paid his money
in consequence of that and the sale was thus effected, it
would be an original undertaking within the exception we
indicated; that is to say, a verbal contract for that purpose
could be enforced. Now, then, that is the one proposition.
[17]
"We
submitted to you to discover whether Mr. Timlin sold the two
interests to Mr. Elkin, or, in order to make a sale of his
own, agreed to become responsible for the payment of any
liens existing against L. S. Watt; if you find that was the
case, why that would be valid and legal. Now, then, you will
observe, in repeating, the plaintiff alleges that there was a
sale by Timlin of the two interests, and that, in order to
effect the sale of the two, he agreed to become so
responsible,...
