Meldrum v. Kenefick

• Decision Date: 01 March 1902
• Citation: 89 N.W. 863,15 S.D. 370
• Parties: MELDRUM v. KENEFICK.
• Court: South Dakota Supreme Court

89 N.W. 863

15 S.D. 370

MELDRUM v. KENEFICK.

Supreme Court of South Dakota

March 1, 1902

Appeal from circuit court, Minnehaha county.

Action by J. G. Meldrum against M. R. Kenefick. Judgment for plaintiff, and defendant appeals. Affirmed.

Robertson & Dougherty, for appellant. R. W. Hobart and Bailey & Voorhees, for respondent.

CORSON J.

This is an appeal from a judgment in favor of the plaintiff. The cause of action is stated in the complaint as follows "That on or about the 20th day of October, 1892, the plaintiff, at defendant's request, entered into a contract with one Joseph S. Kenefick to erect and construct a house on the above-described premises, ready for lathing and plastering, at the agreed price of fifty dollars, for which defendant agreed to pay plaintiff." The answer was a general denial. The case was tried to a jury, and the defendant, at the close of the plaintiff's evidence moved the court to strike out the evidence of the plaintiff for the reason that it appeared from the same that he had not made a contract with the defendant as alleged in his complaint, and because it appeared that the defendant had merely guarantied the payment of the contract. This motion was denied, and plaintiff excepted. At the close of all the evidence the defendant moved the court to direct a verdict in favor of the defendant on the ground that the undisputed evidence in the case showed that the plaintiff claims to hold the defendant liable under a guaranty, and not as principal debtor. It is contended on the part of the appellant that inasmuch as in the complaint it is alleged that the plaintiff entered into a contract with the defendant for the erection of the building, and the evidence showed that he was simply a guarantor, and not the principal debtor, the plaintiff was not entitled to recover in this action, for the reason that such a contract, in order to bind the defendant, must be in writing, under the statute. It is contended on the part of the respondent in support of the judgment (1) that the contract was in fact an original contract entered into by the defendant, upon which he is liable to the plaintiff; (2) that if the defendant was a guarantor, under the evidence, the plaintiff was entitled to recover, for the reason that no objection was made in the trial court that the guaranty was not in writing, and the defendant cannot raise that question for the first time in this court.

It appears from the evidence of the plaintiff that in 1892 he had a conversation with the defendant in regard to the building of a house on the farm then occupied by a brother of the defendant; that he told the plaintiff his brother had the plan, and was in town, and requested the plaintiff to see him; that he saw the brother and the plan. And he further testifies: "I saw Joe, and afterwards saw the defendant and said I would erect the house for $50. I told him I had talked with Joe, and he said I could build it; and then I said to defendant, 'I cannot on Joe's account.' Defendant then said, 'Well, you go ahead and build the house, and I will see that you get your money.' I built and completed it about the last of October." Plaintiff then testified to several conversations between himself and the defendant in regard to the payment, in one of which the defendant desired the witness to get the money out of his brother Joe,--as he had done so much for him, he wanted Joe to pay it. Subsequently, defendant refusing to pay, the plaintiff brought this action. It will be observed from the evidence that he refused to build the house on "Joe's account," and that the defendant directed him to go ahead and build the house, and he would see that the plaintiff should get his money. It is true that the plaintiff spoke in some portions of his evidence of the defendant having guarantied the payment, and that he requested the brother to pay it; but, in our view, the case comes clearly within the provisions of subdivision 2, § 4277 Comp. Laws, which reads as follows: "A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promiser, and need not be in writing: *** (2) Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made his surety. ***" At the time the contract was made with the defendant, no debt existed on the part of his brother, and the plaintiff distinctly refused to erect the building upon the brother's responsibility. It is clear from the plaintiff's evidence that he relied entirely upon the agreement of the defendant to pay him, or see him paid, for erecting the building. Ordinarily, when one agrees to pay the debt of another, which has already been contracted, the party is strictly a guarantor, and his guaranty must be in writing; but when the contract is originally made with the party sought to be charged, and the party seeking to enforce the contract relied exclusively upon the responsibility of such party, the contract is an original one, and need not be in writing. Section 4277, Comp. Laws, is a copy of section 1538 of the proposed Code for the state of New York; and the Code commissioners of that state refer to the following cases, among others, as the basis for this subdivision of the section: Chase v. Day, 17 Johns. 114; Quintard v. De Wolf, 34...