Reynolds v. First Nat. Bank of Wymore

• Decision Date: 06 November 1901
• Citation: 87 N.W. 912,62 Neb. 747
• Parties: REYNOLDS v. FIRST NAT. BANK OF WYMORE.
• Court: Nebraska Supreme Court

62 Neb. 747

87 N.W. 912

REYNOLDS

v.FIRST NAT. BANK OF WYMORE.

Supreme Court of Nebraska.

Nov. 6, 1901.

Syllabus by the Court.

1. Whether the contract pleaded in the petition is ultra vires as to the defendant bank, quære.

2. Any agreement which by its terms is not to be performed within one year from the making thereof is void, unless the same or a memorandum thereof be in writing, and subscribed by the party to be charged thereby. Section 8, c. 32, Comp. St. 1901.

3. Such a contract, to be void, must be one that by its terms is not to be performed within one year from the making thereof. The statute does not refer to such contracts as may possibly or probably not be performed within that time. Live Stock Co. v. Lamb, 56 N. W. 1019, 38 Neb. 339.

4. When by the specific terms of the contract, or otherwise, it appears that it was not the intention of the parties that it should be performed within one year from the time of its making, the contract comes within the provisions of the statute, and is void.

5. The contract pleaded in plaintiff's petition held to come within the operation of the statute, and is therefore unenforceable.

Error to district court, Gage county.

Action by Elisha P. Reynolds, Jr., against the First National Bank of Wymore. From a judgment sustaining a demurrer to the petition, plaintiff brings error. Affirmed.Hazlett & Jack, for plaintiff in error.

Griggs, Rinaker & Bibb and A. D. McCandless, for defendant in error.

HOLCOMB, J.

From a ruling of the trial court sustaining a demurrer to the amended petition of the plaintiff, and entry of judgmentof dismissal of this action, he prosecutes error proceedings in this court. The petition of the plaintiff, so far as it is necessary to refer in consideration of the points presented to us for decision, alleges, in substance, omitting legal verbiage, that one Dolan was seeking to engage in the retail liquor business, and, being largely indebted to the defendant bank, it was desirous of helping him to engage in such business, in order that he might have a good and profitable business, and thereby be enabled to make money and pay off his indebtedness to said bank; that for the reason mentioned the bank assisted Dolan to obtain a bond, in order that he might obtain a liquor license, which was necessary in order to engage in the retail liquor business; and that on or about April 10, 1890, the said bank, by its managing officer, requested and procured the plaintiff to sign the said liquor bond, representing to him that Dolan was largely indebted to the bank, and was to assume large indebtedness to it, and that it was to the interest of the bank to help Dolan procure a license, and to help him to obtain a bond, in order that he might conduct the business, make money, and pay off the indebtedness which he was owing the bank, and that the bank at that time, by its managing officer, verbally promised the plaintiff, and orally agreed with him, that, if he would sign the said liquor bond with the said Dolan, the bank would hold him harmless by reason of said signing, and then and there undertook to the said plaintiff to hold him harmless by reason of the signing by the plaintiff of the bond of the said Dolan; that said request and agreement were made by the bank in the usual course of business, and as a means of collecting a debt owing it by Dolan, which it would otherwise have been unable to collect, and said agreement and promise was a direct promise to pay plaintiff, unconditionally, whatever moneys plaintiff should be compelled to pay and expend by reason of signing said bond, and was made on the bank's own behalf; that by reason of the said agreement the plaintiff signed the said liquor bond, which was filed and approved on or about the 12th day of April, 1890, and a liquor license was thereupon issued to the said Dolan to conduct a retail liquor business for the period of one year, and that he made payments from moneys realized from said business to the bank upon the said debt owing by him to it as aforesaid; that in August, 1891, suit was instituted for damages against the said Dolan and the sureties on his bond; and that the plaintiff was compelled to, and did, incur and expend for traveling and incidental expenses, court costs, and attorney's fees in and about the litigation, and in defending against the same, the sum sued for, which, it is alleged, by reason of the contract mentioned, the defendant bank is liable for, and for which judgment is asked against it.

Different propositions are presented and argued by counsel for the respective parties for and against the sufficiency of the petition, the principal ones being (a) that the contract is ultra vires and void as to the bank, and therefore unenforceable; (b) that it is void by reason of the statute of frauds, in that it is verbal, and not to be performed within one year; and (c) because it is a special promise to answer for the debt, default, or misdoings of another, and is not in writing.

It is not incumbent on us to discuss and consider the three propositions mentioned, if any one is regarded as an insurmountable obstacle to plaintiff's recovery on the facts alleged in the petition. Whether or not the alleged contract is ultra vires, and nonenforceable for that reason, under the facts pleaded, may not be entirely free from doubt, and yet on first impression we are disposed to say it is. We do not, however, in our view of the conclusion which must be reached on the other propositions advanced, deem it best to enter into a discussion of this phase of the case, and therefore, without...