Kirch v. Nicholson

• Citation: 297 P. 398,42 Wyo. 489
• Decision Date: 31 March 1931
• Docket Number: 1648
• Parties: KIRCH v. NICHOLSON
• Court: United States State Supreme Court of Wyoming

297 P. 398

42 Wyo. 489

KIRCH v. NICHOLSON

No. 1648

Supreme Court of Wyoming

March 31, 1931

APPEAL from the District Court, Fremont County; EDGAR H. FOURT Judge.

Action by Lawrence J. Kirch against Oscar W. Nicholson. From a judgment for defendant, plaintiff appeals.

The material facts are stated in the opinion. See also, 37 Wyo 412, 263 P. 605.

Judgment reversed and case remanded.

The cause was submitted for the appellant on the brief of M. C Burk, formerly of Riverton, Wyoming, now of Phoenix, Arizona.

The court erred in excluding evidence offered by plaintiff in support of the contract. This evidence was excluded on objections by defendant that the contract was within the statute of frauds; that it was without consideration, and that plaintiff was not a party thereto; also that the former suit bars this action. Our contention is that defendant's promise to pay was an original contract. 27 C. J. 147 and note 99. This court has already held in the former case that there was a sufficient consideration. Davis, et al. v. Nicholson, 37 Wyo. 412, 263 P. 605. Plaintiff's offer of proof was that the contract was made for his benefit or anyone becoming bail, and that plaintiff had a right to sue in his own name. Farmers State Bank v. Haun, (Wyo.) 222 P. 45; Bank v. Nelson, 111 P. 907; Williston's Pollock on Contracts, (3d Ed.) 241. The indebtedness is several, and not joint, 1 C. J. 1120, note 45.

The cause was submitted for respondent on the brief of A. C. Allen, of Riverton, Wyo.

The question was adjudicated by this court in Case 3543, 15 R. C. L. 962; Cook v. Elmore, (Wyo.) 192 P. 824, 23 Cyc. 1106-1108, 1215. Where an obligation is made to several persons jointly, all the obligees must join in an action to enforce it, in the absence of any suit changing the rule. Elliott on Conts., Vol. 2, page 1492; Anderson v. Lbr. Co., 211 P. 937; Bliss on Code Pleading, (3d Ed.) Sec. 62. Plaintiff attempted to split his cause of action, which is not permissible. 1 C. J. 1106-1107, 23 Cyc. 436, 437. The same evidence is required to support this suit as was introduced and passed upon in the former suit. This is the general test applied, requiring both causes of action to be joined in one suit. The Haiitian Republic, 154 U.S. 125; Secor v. Sturgis, 16 N.Y. 548; Bernitt v. Co., 184 F. 139; Bland v. Freeman, 29 F. 662. A judgment for part of a claim releases all. Deweese v. Smith, 106 F. 442; Baird v. U.S. 96 U.S. 432; Twing v. McNairy, 20 O. S. 315. All persons having an interest should have been joined in the action 5594 C. S.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The transaction that caused the prosecution of this action was before the court in Davison, et al. v. Nicholson, 37 Wyo. 412, 263 P. 605. Davison and Mitchell, plaintiffs in the former action; Kirch, plaintiff in this action, and Nicholson, defendant in both actions, were stockholders of the Riverton Elevator Company. J. A. Linderholm had obtained two judgments against the elevator company, and in 1923 executions were issued. Pursuant to Section 5943, et seq., Wyo. C. S. 1920, Davison, Mitchell and Kirch became bail for the payment of the judgments for the purpose of procuring a stay of the executions. When the period of the stay had expired, the persons who had become bail for the judgment debtor were compelled to satisfy the judgments by paying in settlement $ 3000, which was something less than the amount then due. Davison paid $ 2500 and Kirch $ 500. Davison and Mitchell, as plaintiffs, then sued Nicholson on an alleged oral promise by Nicholson to the effect that if plaintiffs would enter into such bail to stay the executions, Nicholson would pay the judgments and hold the plaintiffs harmless. The plaintiffs in that action recovered $ 2500, the amount that had been paid by Davison. The judgment, which was affirmed by this court (Davison v. Nicholson, supra), recites that plaintiffs in that action were compelled to and did pay the sum of $ 2500 on said judgments, and that the sum of $ 500 was paid by L. J. Kirch, "but that the plaintiffs herein are not entitled to recover said sum so paid by said L. J. Kirch."

Kirch then commenced the present action against Nicholson, alleging, among other things, that before the bail to stay the executions was given, Nicholson "made and entered into an agreement to and with one C. A. Davison and J. H. Mitchell, to the effect that if the said C. A. Davison and J. H. Mitchell would execute an undertaking in stay of execution, and would procure the necessary surety on such undertaking in stay of execution and permit themselves and such surety to be used as bail, that he the said defendant, would be able to meet said indebtedness and pay the same and would pay said judgment when the six months stay of execution should expire, and that he, the said defendant would then pay said judgments and hold the said C. A. Davison and J. H. Mitchell and any other surety secured by them, harmless on account of any loss or damage they might sustain by reason of their signing as sureties and bail for stay of execution on said judgments;" that thereafter "the said C. A. Davison and J. H. Mitchell called upon this plaintiff and informed him of the agreement made to and with said defendant herein, and plaintiff well knowing that defendant was well able to meet and pay said judgments, and relying upon the promises he so made to the said C. A. Davison and J. H. Mitchell, * * * signed said execution as stay and bail therefor."

The answer denies the contract; pleads the judgment in the former action of Davison and Mitchell against Nicholson, as a bar or estoppel, and alleges that defendant's promise as set forth in the petition was an oral promise to answer for the debt or default of another and, therefore, void under the statute of frauds.

The case was tried without a jury. By the striking out and exclusion of offered evidence, plaintiff was prevented from proving defendant's alleged promise. Judgment for defendant followed, and plaintiff appeals.

The evidence offered by plaintiff for the purpose of establishing the contract would have justified the court in believing the facts were substantially as follows: Persons, including Davison, Mitchell and defendant, interested in the elevator company, conferred for the purpose of deciding on a plan for saving the company's elevator from levy and sale under the outstanding executions on the Linderholm judgments. It was decided that bail to stay the executions should be given, and suggested by defendant that Mitchell and Davison should sign the bail. Defendant did not want to be one of the signers, and gave as his reason that he wanted to be on the outside, so he could purchase the property. He said that if the others would sign he "would take care of the bond," and "protect" the signers by paying the judgments, or buying in the property, after the expiration of the stay period; that "he wanted to own the elevator." It was suggested that Davison and Mitchell did not have property sufficient to enable them to qualify as bail, and defendant then said that additional sureties could be procured, and he would protect them. Plaintiff Kirch, who was not present, was then mentioned as one interested in the company who might sign as bail with Davison and Mitchell. Defendant said that Kirch would probably sign "under those conditions;" that anyone signing the bond "would have nothing to fear." Davison then saw plaintiff and told him of defendant's statements, and plaintiff, Davison and Mitchell, relying on defendant's promises, then signed the bail in the presence of defendant.

The evidence was rejected on defendant's motions and objections on three grounds.

The first ground was that, because defendant made no promise to plaintiff but only to Mitchell and Davison, plaintiff, in signing the bail, was a mere volunteer. Counsel for defendant, in pressing and briefly arguing this point seem to fail to recognize that a promise may be made to one person for the benefit of another. See Williston on Contracts, Chapter 13. That the contract which plaintiff tried to prove was a contract of that kind may be doubted. The offered evidence may have warranted the view that defendant's promise was not only to Davison and Mitchell, but also, through Davison as intermediary, to plaintiff. However that may be, it is clear that the contract was for plaintiff's benefit, and that he was a party to the consideration and a real party in interest.

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