Johnson v. Bank.
| Decision Date | 23 October 1906 |
| Citation | 60 W.Va. 320 |
| Court | West Virginia Supreme Court |
| Parties | Johnson v. Bank. |
1. Trial Question for Jury.
When the issue in an action at law involves the question whether an oral promise is original or collateral, which must be determined from materially conflicting evidence and circumstances and inferences therefrom, and the evidence and circumstances are such that the verdict of a jury for either party could not be set aside because without sufficient evidence to support it or because plainly against the decided weight and preponderance of the evidence, such question is one of fact to be determined by a jury, (p. 324.)
2. Same Instructions.
In such case, instructions which in effect direct the jury to determine such question from a part only of the proper and material evidence and circumstances, excluding other parts thereof in conflict with the part directed to be considered, are erroneous, (p. 325.)
3. Frauds, Statute Of Oral Promise Intent of Parties.
In determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded, (p. 325.)
4. Same Evidence.
In ascertaining such intention, the words of the promise, the situation of the parties and all the circumstances attending the transaction should be taken into consideration. (p. 324.)
5. Same Credit Given Third Person.
An oral promise to pay for services rendered to a third person is not actionable if the services were rendered wholly or partly upon the credit of an independent original promise or liability of such third person. If any credit whatever was given to such third person at the time the services were rendered so that he was in any degree independently and originally liable, the oral promise of the other party is invalid, (p. 326.)
Error to Circuit Court, McDowell County. Action by George Ben Johnson against; Ida Bank. Judgment for plaintiff, and defendant brings error.
Reversed and Remanded.
Cook & Howard, for plaintiff in error.
D. J. F. Strother, for defendant in error.
In this action of assumpsit instituted by Geo. Ben John-' son, a surgeon of Richmond, Virginia, against Mrs. Ida Bank, in the circuit court of McDowell county, there was a verdict of a jury and a judgment for the plaintiff for Five Hundred Dollars, being the amount of a lee claimed by him for the performance of a surgical operation upon Mrs. Louis Jaffe, a sister of Mrs. Bank. She obtained a writ of error to the judgment. The amount of the recovery is justified by the evidence if the evidence fixed a liability upon Mrs. Bank, the defendant. She complains of the giving to the jury of instructions, numbers 1 and 2, at the instance of the plaintiff, of the refusal to give instruction number 1 offered by her, and of the overruling of her motion to set aside the verdict and grant to her a new trial.
The plaintiff claims that there was an oral promise by defendant to pay his fee. The services were not rendered to the defendant but to a third person, the defendant's sister. The two crucial questions involved in the issue in this action are: 1st, Did the defendant make the promise claimed by the plaintiff? 2nd, If so, was that promise original or collateral? If there was a promise by defendant and it was to answer for the debt of another, then being oral, it is not actionable under the Statute of Frauds, section 1 chapter 98, Code. On the other hand if the promise by def endan t was to pay her own debt it is actionable without writing, although the services were rendered to a third person.
A partial statement of the evidence is necessary. Drs. Daniel and Hall testified for plaintiff substantially that they were practicing physicians and were called to attend upon Mrs. Jaffe by her husband, Louis Jaffe; that after a diagnosis and consultation they decided that an operation was necessary; that they did not care to undertake it without assistance; that they consulted the defendant, Mrs. Bank; that they told Mrs. Bank that it would be necessary to opererate upon Mrs. Jaffe in order to save her; that they told her that they did not want to undertake the operation without assistance; that Mrs. Bank mentioned the name of a doctor in New York or Baltimore; that they told her that they could get the plaintiff, Dr. Johnson, cheaper and quicker; that Mrs. Bank said ; that thereupon they sent a telegram to Dr. Johnson; that Dr. Johnson came and performed the operation and that they did not consider Louis Jaffe financially responsible and would not have sent for Dr. Johnson had it not been for Mrs. Bank's statement.
Dr. Johnson, the plaintiff, testified on his own behalf substantially that the telegram received from Doctors Daniel and Hall was according to his recollection in the followinglanguage, Signed "Daniel and Hall;" that upon this call he came and performed the operation upon Mrs. Jaffe; that no other arrangement was made as to the payment of his fee previous to the operation; that he'relied upon Drs. Daniel and Hall as having made proper arrangements for his fee; that after the operation Daniel and Hall stated to plaintiff that in the event Mrs. Jaffe's husband did not compensate him her sister would; that plaintiff rendered his bill for the operation to Louis Jaffe, the husband; that the bill was made from plaintiff's book; that after receiving no response from the husband he communicated with Drs. Daniel and Hall and was told by them that according to their agreement he should send the bill to the sister if he heard nothing from the husband.
Mrs. Bank, the defendant, testified on her own behalf substantially that Daniel and Hall said that an operation was necessary upon Mrs. Jaffe; that they weie unwilling to undertake it without assistance; that they had decided to send for Dr. Johnson before she knew of their intention of so doing; that when informed of this she asked who Dr. Johnson was; that she had never heard of him before; that she remarked that she wished Dr. Kelly, of Baltimore, was present; that Dr. Hall wrote the telegram and gave it to Louis Jaffe to send; that Dr. Johnson came and operated upon Mrs. Jaffe and that Mrs. Jaffe died leaving an estate worth seven or eight hundred dollars. When asked if the statement that Daniel and Hall made before the jury was true the defendant replied, "It is not true that I promised to pay Dr. Johnson's bill."
We have not detailed all the evidence but enough to show that the evidence and circumstances are materially conflicting as to both questions mentioned. Answers to these questions must be deduced from such conflicting evidence and circumstances and inferences therefrom. In calling Dr. Johnson, Daniel and Hall, acting for Mrs. Bank, could bind her within the scope of the authority given to them by her and no farther. If the conversation between Mrs. Bank and Daniel and Hall, considering the situation of the parties and the circumstances surrounding the transaction, authorized them to make an original promise for her then they could so bind her, but without such authority, express or implied, they could not do so. In determining whether a promise is original or collateral regard must be had to the intention of the parties at the time the promise was made. Throop on Verbal Agreements, sections 183-188. In 29 Amer. & Eng. Enc. of Law 907, it is stated that "While as a matter of law a promise absolute in form to pay or to be 'responsible' or to be 'paymaster' is an original promise and while on the other hand if the promissor says 'I will see you paid' or 'I will pay if he does not' or uses equivalent words the promise standing alone is collateral, yet, under all the circumstances of the case an...
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