Glickman v. Bowman

• Decision Date: 16 May 1933
• Citation: 21 P.2d 1082,143 Or. 229
• Parties: GLICKMAN v. BOWMAN.
• Court: Oregon Supreme Court

21 P.2d 1082

143 Or. 229

GLICKMAN v. BOWMAN.

Supreme Court of Oregon

May 16, 1933

En Banc.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Suit by M. Glickman against Dan E. Bowman. Judgment for plaintiff and defendant appeals.

Affirmed.

J. F Alexander and Guy L. Wallace, both of Portland, for appellant.

Dey Hampson & Nelson and Herbert L. Swett, all of Portland, for respondent.

BELT, Justice.

Plaintiff on January 17, 1930, under the terms of a written contract, sold to defendant a stock of goods, wares, and merchandise in the city of Eugene. There was included in the sale certain accounts receivable which plaintiffs agreed to buy on the basis of "75¢ of their face value to the extent of not less than $3,600," not including "any accounts which have been charged off the books or which are doubtful."

It is alleged in the amended complaint that, after the written contract of sale was executed, it was ascertained that the total amount of accounts receivable on the books (aside from certain worthless accounts not included in the sale) was $2,721.65; and that it was thereupon agreed verbally between the parties that the written contract should be so modified that plaintiff was to purchase from defendant accounts receivable aggregating $2,721.65, paying therefor "75¢ of their face value" and that defendant would guarantee said "accounts to be good and collectible to the full extent of their face value."

Plaintiff further alleges that of the accounts purchased $1,112.40 were and are uncollectible, although he "endeavored diligently" to collect them. Wherefore plaintiff demanded judgment by reason of this alleged breach of guaranty, in the sum of $834.30.

Defendant denied that he guaranteed any of the accounts as being good accounts or that they were collectible "to the full extent of their face value or to any extent." As a further defense it was alleged in substance that the accounts were collectible and that plaintiff made no diligent effort to collect the same and had not reduced any of the accounts to judgment.

Plaintiff denied the new matter pleaded as an affirmative defense.

On the issues thus briefly stated, the cause was submitted to the court without a jury. Judgment was rendered in favor of plaintiff in the sum of $570.55. Defendant appeals.

Defendant objected to the introduction of any evidence for the reason that the amended complaint failed to state facts sufficient to constitute a cause of action, in that the alleged guaranty was within the statute of frauds (Code 1930, § 9-909, subd. 2), requiring "an agreement to answer for the debt, default, or miscarriage of another" to be in writing. No error was committed in overruling this objection. The statute of frauds has no application to the facts in this case, and it was proper to receive evidence tending to show the modification of the written agreement.

The rule applicable is thus clearly stated in 27 C.J. 156 "A guaranty is not within the statute where the debt, mortgage, negotiable instrument, or other contract guaranteed was transferred from the guarantor to the guarantee, at the time of making the contract of guaranty, upon a consideration moving wholly between the parties to the guaranty." Citing in support of the text many authorities among which is Kiernan v. Kratz, 42 Or. 474, 69 P. 1027, 70 P. 506. Or, as stated in Page on Contracts, § 1239...