McMillan v. Aitchison
| Decision Date | 07 March 1893 |
| Docket Number | 6731 |
| Citation | 54 N.W. 1030,3 N.D. 183 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; McConnell, J.
Action by John McMillan and Christina McMillan against John Aitchison. Plaintiffs had judgment, and defendant appeals.
Reversed.
Judgment reversed and a new trial granted.
Francis & Southard, for appellant.
Benton & Amidon, for respondents.
To reverse a judgment against him, based upon a verdict, the defendant and appellant assigns six errors: First that the evidence was insufficient to support the verdict, specifying wherein it was insufficient; second, that the complaint did not state facts sufficient to constitute a cause of action; third, error of the court in ruling upon the admission of evidence; fourth, error of the court in refusing to nonsuit, or direct a verdict for defendant; fifth, error of the court in refusing an instruction asked by appellant; and, sixth, that the verdict was contrary to the evidence and instructions. The second assignment is not well taken, and merits no discussion, beyond what is incidental to the disposition of the other assignments.
The respondents are husband and wife, and their complaint alleges that on and prior to April 5th, 1885, one Ober was indebted to respondents for work and labor performed for him at his request, in the sum of $ 400; that on said 5th day of April, 1885, and while said indebtedness was due and unpaid, the appellant, Aitchison, undertook and agreed to pay said respondents said amount, and that, as a consideration for said promise, respondents agreed to, and did, enter into the employment of appellant, and did perform valuable services for him, and which were beneficial to him. There is a further allegation that during the year 1885, and, as appears from the evidence, some months subsequent to April 5th, the appellant "had in his possession and control, and was indebted to said Ober, in, a certain large sum of money," and that respondents were about to commence an action against said Ober, and attach the money and property in appellant's hands, and that appellant further promised and agreed that if respondents would not commence such proceedings, and attach said property in his hands, he would pay respondents the debt owing them from said Ober, and that, in consideration of such promise, respondents did not take the legal steps contemplated. The answer was, in substance, a denial. As we read the instructions, the jury were plainly told that respondents could recover nothing by reason of this latter promise, set forth in the complaint; and, as neither party complains of such instruction, it must stand as the law of the case, and our investigations are confined to the first promise alleged. As this promise rests in parol, only, it is admitted that, if it were a collateral promise of guaranty, it was void, under the statute or frauds. But it is claimed that it was an original undertaking based upon a benefit accruing directly to the promisor.
Section 4277, Comp. Laws, reads: "A promise to answer for the obligations of another in any of the following cases is deemed an original obligation of the promisor, and need not be in writing: * * * (3) Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor, or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment, under an execution on a judgment obtained upon the antecedent obligation, or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person." In this case the antecedent obligation was not released, as respondents subsequently contemplated an action against Ober. Neither was there a release of property from any levy, as no actual levy was ever made. If the case falls within the statute, it is by reason of the final provision,--"or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation or from another person." This statutory provision, it will be noticed, excludes a portion of the broad consideration "of benefit or harm moving between the newly contracted parties," as laid down by Chief Justice Kent in Leonard v. Vredenburg, 8 Johns. 29, and the cases that have followed that decision, and confines it to that which is beneficial to the promisor, but without regard to the source from which the benefit moves. The learned trial court placed the case entirely upon this promise, and the charge to the jury was full, clear, and very fair to appellant. The jury could not have returned a verdict for respondents without disregarding the court's instructions, unless they found the promise was made as alleged, and based upon a consideration beneficial to the promisor.
It is earnestly contended that the evidence does...
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