George Bolln Co. v. Freeman
Decision Date | 14 January 1931 |
Docket Number | 1644 |
Parties | GEORGE BOLLN CO. v. FREEMAN |
Court | Wyoming Supreme Court |
APPEAL from District Court, Converse County; CYRUS O. BROWN, Judge.
Action by the George Bolln Company against Luther Freeman. From the judgment, defendant appeals.
Affirmed.
For defendant and appellant there was a brief by Joseph Garst, of Douglas, Wyoming, and A. E. Stirrett, of Casper, Wyoming.
The finding of the jury was contrary to evidence. Granting all of plaintiffs evidence to be true, the agreement was for groceries and not for clothing, and a large part of the clothing was sold to other persons besides Hays, with no showing that Hays had any connection with the case. The groceries sold were for the ranch, whereas the evidence shows some portions thereof, were sold to Mrs. Hays while she was in town. The jury included items excluded by the court. The court erred in refusing to give instruction "B" and thereby deprived the jury of information as to the statute of frauds, and as to whether the alleged agreement amounted to an original or collateral promise. McGowan Com. Co. v. Midland Coal and Lbr. Co., (Mont.) 108 P 655; Breidenbach v. Co., (Mont.) 187 P. 1008. The contract testified to by Froggatt was not an original promise, but a collateral promise, coming within the statute of frauds, so under the evidence, defendant could not be lawfully held as an original contractor, he being, at most a guarantor. Harris v. Frank, (Calif.) 22 P. 856. The evidence to prove a promise to pay the debt of another, as an original undertaking, and not a contract of suretyship, must be clear and satisfactory. 27 C. J. 387.
For the plaintiff and respondent, there was a brief by Theo. C Daniels and John D. Dawson, both of Douglas, Wyoming.
This appeal should be dismissed for the reason that the record does not contain certified copies of the journal entries, of the judgment, or that any judgment was ever entered in the case. Sec. 6405 C. S.; McClintock v. Ayres, 34 Wyo. 430; Bader v. Mills & Baker Co., 28 Wyo. 196; Faulkner v. Faulkner, 27 Wyo. 62; Goodrich v. Bank, 26 Wyo. 44; Kendrick v. Healey, 26 Wyo. 261; Hahn v. Citizens State Bank, 35 Wyo. 467. No application was made, or order granted, extending time to file the record on appeal. There is a marked distinction between a reporter's transcript and a record on appeal. Kendrick v. Healey, supra. No objections were made to the introduction in evidence of the slips for clothing, and the point relating thereto, cannot be considered on appeal. 3 C. J. 746; Hibbard v. Equitable Ins. Soc., 81 W.Va. 663; 1 Wigmore Ev. 187; State v. Hood, 15 L. R. A. (N. S.) 448. The term "groceries" may include all merchandise sold in general stores. 28 C. J. 627; Ins. Co. v. Francis, 52 Miss. 457, 6 R. C. L. 837. The refusal to give instruction "B" was not error for the reason that the instruction was unnecessary. Fortman v. Loggorini, (Mont.) 152 P. 33. The question as to whether the promise was collateral to answer for the debt of another, or an original agreement to pay a debt, is one of law. H. C. Ceiffert Co. v. Wright, (Wash.) 185 P. 577. The character of the promise is to be determined as a question of law. Breidenbach v. Orchards Co., (Mont.) 187 P. 1008. The issue at the trial was not whether defendant Freeman had made a collateral or an original promise; but whether he had made any promise at all. It was shown that the promise was clear, unequivocal and could have been understood by reasonable men in only one way; therefore, the court did not err in refusing instruction "B".
The record on appeal in this case has been filed here for the purpose of securing the review of a judgment entered by the District Court of Converse County upon the verdict of a jury in favor of the plaintiff and respondent, George Bolln Company, a corporation.
It is urged that the appeal must be dismissed, because there are no certified copies of the journal entries made in the case incorporated in the record, as required by Section 6406, W. C. S. 1920. The situation disclosed by the record appears to be this: On page 33 thereof is set forth the clerk's final certificate concerning the record, stating--to quote verbatim but omitting the formal introduction and conclusion--that:
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