Mundt v. Messenger Pub. Co.

Decision Date02 March 1920
Docket NumberNo. 4634.,4634.
Citation176 N.W. 740,42 S.D. 608
PartiesMUNDT v. MESSENGER PUB. CO. et al.
CourtSouth Dakota Supreme Court


Appeal from Circuit Court, Hughes County; John F. Hughes, Judge.

Action by William J. Mundt against the Messenger Publishing Company and Charles B. Billinghurst. Judgment for plaintiff, and defendant Billinghurst appeals. Affirmed.Gaffy, Stephens & McNamee, of Pierre, for appellant.

Horner, Martens & Goldsmith, of Pierre, for respondent.

McCOY, P. J.

In this action there was verdict directed and judgment rendered in favor of plaintiff, from which defendant Billinghurst appeals.

It appears from the record that in December, 1911, the respondent purchased from the Unitype Company a typesetting machine for $1,500, under a conditional contract of sale which provided for a cash payment of $50, and the balance in notes of $25 each, payable each consecutive month thereafter until the full payment of said purchase price; that title to said machine should remain in said Unitype Company until full payment, and which contract was duly filed and placed of record; that thereafter, in April, 1913, respondent sold and delivered said machine to the Messenger Publishing Company; that said Messenger Publishing Company, as part of the consideration of said contract of sale, in writing expressly assumed and agreed to pay to said Unitype Company the sum of $1,236.25, which was then due and unpaid on said contract for the purchase price of said machine; that thereafter, in June, 1913, the said Messenger Company, among other things, sold and delivered said machine to appellant Billinghurst, who in writing, as a part of the consideration for said sale, expressly assumed and agreed to pay the balance of $1,100 then remaining due to the said Unitype Company for said machine. Thereafter suits were instituted by the Unitype Company and others who had become the owners of said notes, which had been given for the said purchase price of said machine, against respondent, and judgments were rendered in said actions against said respondent for the full amount of said purchase price of said machine then remaining unpaid, and which amounts had been assumed and agreed to be paid by said Messenger Publishing Company and appellant, and which judgments were thereafter paid and satisfied by respondent. Respondent upon being sued in said actions immediately notified said Messenger Publishing Company and appellant thereof, and requested them to pay said notes or defend in said action, and to interpose and plead any defense they might have against a recovery in said actions.

[1] The first contention of appellant is that there was no privity of contract between respondent, Mundt, and appellant, Billinghurst, and that there was no obligation on the part of appellant to pay respondentthe indebtedness involved in this action. We are of the opinion that, when appellant assumed and so agreed to pay said indebtedness to the Unitype Company, he thereby became a debtor to the Unitype Company or its assigns, and that respondent became a surety for the payment of said indebtedness, and that when respondent paid and satisfied said judgments and said indebtedness he became subrogated to all the rights of the Unitype Company, or other owners of said notes, and thereby and thereafter the appellant became and was the debtor of respondent. Dillaway v. Peterson, 11 S. D. 210, 76 N. W. 925;Miller v. Kennedy, 12 S. D. 478, 81 N. W. 906;Hull v. Hayward, 13 S. D. 292, 83 N. W. 270, 79 Am. St. Rep. 890;Iowa Loan Co. v. Schnose et al., 19 S. D. 248, 103 N. W. 22, 9 Ann. Cas. 255; 19 R....

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