Mineau v. Imperial Dredge & Exploration Co.

• Decision Date: 03 March 1911
• Citation: 19 Idaho 458,114 P. 23
• Parties: J. A. MINEAU, Appellant, v. IMPERIAL DREDGE AND EXPLORATION CO., Respondent
• Court: Idaho Supreme Court

114 P. 23

19 Idaho 458

J. A. MINEAU, Appellant, v. IMPERIAL DREDGE AND EXPLORATION CO., Respondent

Supreme Court of Idaho

March 3, 1911

NONSUIT-PRIMA FACIE CASE-SUFFICIENCY OF EVIDENCE-ASSUMPTION OF PRE-EXISTING INDEBTEDNESS.

(Syllabus by the court.)

1. The rule with reference to granting of nonsuits as announced by this court in Later v. Haywood, 12 Idaho 78, 85 P. 494, and followed in Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P 497, and Stricker v. Hillis, 17 Idaho 646, 106 P. 1128 followed and approved.

2. Evidence in this case examined and considered, and held that it was sufficient to make out a prima facie case, and that it was error to take the case from the jury and dismiss the action.

3. Where the evidence tends to show that one corporation has purchased all the property and rights of another corporation which has been engaged in business, and as a part of the consideration for such purchase and transfer the purchaser has agreed to assume and pay the outstanding debts and liabilities of the old corporation, such a transaction constitutes the liability of the new company to pay such indebtedness and original obligation, which is not required to be in writing under the statute of frauds.

APPEAL from the District Court of the Fourth Judicial District, for the County of Elmore. Hon. Edward A. Walters, Judge.

Action for debt. Judgment for defendant. Plaintiff appeals. Reversed.

Judgment reversed, and a new trial granted. Costs awarded in favor of appellant.

K. I. Perky, L. B. Green and John F. MacLane, for Appellant.

On motion for nonsuit, "the defendant admits the existence of every fact which the evidence tends to prove, or which can be gathered from any reasonable view of the evidence." ( Later v. Haywood, 12 Idaho 78, 85 P. 494.)

For a good and valuable consideration respondent agreed to pay and discharge the debts due, and liabilities to third persons. It received the property for that express purpose, and upon that consideration the promise was made, and the authorities show that, in such cases, the party for whose benefit the promise is made may maintain an action against the promisor. ( Morgan v. Overman Silver Min. Co., 37 Cal. 534; Flint v. Cadenasso, 64 Cal. 83, 28 P. 62.)

The promise of the respondent to pay Mineau's debt, among the others assumed by it, was based on "a consideration beneficial to the promisor," viz.: The receipt of the Utility Company's property. Such promises are not within the statute. (Wait v. Wait's Exr., 28 Vt. 350; Sherer v. Rubedew, 11 Idaho 536, 83 P. 512; 23 Cent. Dig., col. 1886, sec. 29, collecting cases.)

E. M. Wolfe, for Respondent.

The evidence does not show that the Imperial Co. had any knowledge that plaintiff had any claim against the Utility Power Co. at the time it took possession of the property, or that the Utility Power Co. did not receive value for such property as it sold to the Imperial, if it sold any, or that the Utility Co. was unable to pay its obligations, or that the plaintiff made any effort to collect his obligation from the Utility Co. If the property of the Utility Co. had been transferred to the Imperial Co. with a fraudulent intent, on the part of this defendant, to defraud creditors of the Utility, then, in that case, the property would be a trust fund, and could be held by the creditors in a proper suit against the Imperial Co.

This fact, however, could not be shown except in a proper case and upon proper pleadings. (See Anderson v. War Eagle Con. Co., 8 Idaho 789, 72 P. 671.)

AILSHIE, Presiding J. Sullivan, J., and Budge, District Judge, concur.

OPINION

AILSHIE, Presiding J.

This is an appeal from a judgment and an order denying a motion for a new trial. After the plaintiff had submitted his evidence and rested his case, the defendant moved for a nonsuit, which motion was allowed and the case was withdrawn from the jury and dismissed.

The action was instituted by the plaintiff to recover a commission for the sale of water rights for certain arid lands and securing settlers for such lands. The plaintiff claimed that he had a contract with the defendant, the Utility Power Co., Ltd., whereby he was to procure settlers for certain arid lands situated in Ada county, and sell them water rights for such lands, and that for his service in doing so he was to realize the sum of $ 5 per acre as commission; that in pursuance of the terms of that contract he procured settlers and sold water rights for a large tract of land, and that the defendant was indebted to him accordingly. He further alleged that the Utility Power Co., Ltd., sold and transferred all of its property to the defendant, the Imperial Dredge & Exploration Co., and that as a consideration therefor the latter company promised and agreed to pay all the outstanding debts and obligations of the former company, which included the indebtedness of the Utility Power Co. to this plaintiff.

The action was dismissed as to the Utility Power Co. and proceeded thereafter against the Imperial Dredge and Exploration Co. alone, which company is the only respondent in this court.

The respondent contended in the lower court and contends here that the evidence was not sufficient to establish any liability on the part of the respondent, or that respondent ever assumed the indebtedness to the appellant, either by direct promise or contract or by implication of law. The appellant, on the other hand, contends that he made a prima facie case sufficient to go to the jury, and that the court erred in taking the case from the jury.

The evidence in the record is quite clear that the plaintiff had a contract with the Utility Company as alleged in his complaint, and that he procured certain settlers and sold a number of water rights in accordance with the terms of his contract. The evidence is not so strong, however, on the question as to the liability of the Imperial Dredge and Exploration Co. There is evidence which tends to show that the dredge company purchased all the property and rights of the Utility Power Co. and succeeded to all of its...