Peyson v. Conniff

• Decision Date: 30 June 1891
• Citation: 49 N.W. 340,32 Neb. 269
• Parties: PEYSON v. CONNIFF ET AL.
• Court: Nebraska Supreme Court

32 Neb. 269

49 N.W. 340

PEYSON

v.CONNIFF ET AL.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

Where goods, money, or services are furnished to a third person at the request and on the credit of the promisor, the undertaking is original, and the promisor will be liable, although the promise is not in writing.

Error to district court, Dakota county; NORRIS, Judge.Jay Bros., for plaintiff in error.

Burton & Bevington, for defendants in error.

MAXWELL, J.

The defendants in error brought an action against the plaintiff in error, and alleged in their petition “that on or about the 4th day of June, 1887, in Woodbury Co., Iowa, the defendant entered into and made a contract with plaintiffs, agreeing to pay whatever sum might become due said doctors for their professional services for taking care of and treating one A. Hanstine, whose skull had been fractured in defendant's saloon in Covington, Neb.; that plaintiffs, acting upon said agreement, performed the services mentioned in Exhibit A, hereto attached, which is made a part of this petition, and is a true copy of the charges made in plaintiffs' day-book, giving date and kind of services rendered; that said entries were made in due course of business, and in each and every case immediately after services rendered, and that each and every charge was made in pursuance of said contract, and therefore charged, as shown in Exhibit A, to the defendant, J. N. Peyson; that the charges are reasonable, and plaintiffs have made demand of payment from said defendant, but have received no further payment than is shown by Exhibit A, and that there is now due and owing plaintiffs from the defendant the sum of $129, no part of which has been paid.” To this petition the plaintiff in error filed an answer, as follows: “That defendant denies that, on or about the 4th day of June, 1887, he entered into an oral contract with the plaintiffs by which he agreed to pay the said plaintiffs whatever sum might become due the said plaintiffs for their professional services for taking care of and treating one A. Hanstine. (2) Denies that the defendant entered into the contract set forth in the said petition with the plaintiffs, or with any person, and the contract sued on is void under the statute of frauds of this state. (3) Defendant, further answering the said petition, denies each and every allegation in said petition set forth, not otherwise answered.” On the trial of the cause a jury was waived, and the cause submitted to the court, which found in favor of the defendants in error, and rendered judgment accordingly. An itemized copy of the account sued on was introduced in evidence, and is now before us, which tends to show that the charges were made against the plaintiff in error. The testimony shows that at the time these services were rendered the plaintiff in error was keeping a saloon in Covington, Neb., and that one A. Hanstine was injured in an altercation in that saloon; that Dr. Shellabarger, one of the defendants in error, was called in to attend him. Up to this point there is no conflict in the testimony. Dr. Shellabarger testified, in substance, that the plaintiff in error came to him, and stated that the injuries had been inflicted in his saloon, and he felt great anxiety to have Hanstine recover from his injuries, and said to the doctor that, if he would attend Hanstine, he would pay the charges; that, in pursuance of such promise, the doctor did render the...