Marx v. Schwartz

• Decision Date: 15 November 1886
• Citation: 14 Or. 177,12 P. 253
• Parties: MARX and another v. SCHWARTZ.
• Court: Oregon Supreme Court

12 P. 253

14 Or. 177

MARX and another v. SCHWARTZ.

Supreme Court of Oregon

November 15, 1886

Appeal from Multnomah county.

Action on contract of guaranty. Judgment for defendant. Plaintiffs appeal.

George W. Yocum and W. Scott Beebe, for appellants, Marx and another.

W.B Gilbert, for respondent, Schwartz.

STRAHAN J.

The complaint in this action states in substance that on April 15, 1884, plaintiffs sold and delivered to Thomas Watson goods, wares, and merchandise of the value of $2,368.35; that afterwards, on April 30, 1884, defendant, for a valuable consideration, made and executed to the plaintiffs a certain contract in writing, in words and figures as follows, viz.:

"In consideration of one dollar and other valuable considerations, receipt of which is hereby acknowledged, I do hereby guaranty the payment to Marx & Jorgenson, of Portland, Oregon, of the sum of six hundred and twenty-four 65-100 dollars, due and owing to them by Thomas Watson.

"Witness my hand and seal this thirtieth day of April, 1884.

"J SCHWARTZ." [ L. S.]

--That afterwards, on July 22, 1884, plaintiffs recovered judgment against Watson for said $2,368.35; and that they realized upon the sale of Watson's property on execution, $519, and no more, and that the balance of said judgment remains unpaid, and that defendant has not paid said $624.65.

The answer admits the execution of the contract sued on, but denies it was for value. The answer then alleges that said written guaranty was obtained from the defendant through fraudulent deceit of the plaintiffs, as follows: "That, shortly prior to the time the said instrument was signed, the said Watson, without the consent of the defendant, transferred his account with said firm to the name of this defendant, and purchased goods of said firm in the name of this defendant,--the said firm well knowing that the same was unauthorized by the defendant, and that said defendant had no interest in the business of said Watson, or in any of the goods so purchased; that, at the time said instrument was signed, plaintiffs, for the purpose of inducing the defendant to sign said writing, represented to the defendant that, as appeared by their books, the defendant was indebted to them in the sum of $624.65, and falsely and fraudulently represented to the defendant that, if he would sign said instrument, they would sue said Watson for the amount, together with the remainder of said Watson's debt to them, and they could thereby collect the whole of said debt, and further promised to defendant that, if he would sign said instrument, they would never use the same against him, or attempt to hold him liable thereon; that he believed said representations, and was thereby induced to and did sign said writing, and that the said representations were false, and known to be false by the plaintiffs at the time they were made. The answer then alleges there was no consideration whatever for said writing, and that the one dollar, nor any sum, was paid as a consideration. The reply denied the new matter in the answer, and upon these issues the cause was tried. All the evidence given upon the trial is included in the bill of exceptions.

Upon the trial plaintiffs' counsel asked the court to instruct the jury as follows: "That if the jury find from the evidence that the debt guarantied was the debt of Schwartz and contracted by him, then the plaintiffs can recover in this action." The court refused this instruction, and gave in lieu thereof the following: "If the debt guarantied was the debt of Schwartz, the defendant, then the plaintiffs are not entitled to recover in this action." The...