Rice v. Hardwick
| Decision Date | 23 March 1912 |
| Citation | 124 P. 800,17 N.M. 73,1912 -NMSC- 009 |
| Parties | RICE v. HARDWICK. |
| Court | New Mexico Supreme Court |
On Motion for Rehearing, May 20, 1912.
Syllabus by the Court.
A promise, athough in form to pay the debt of another, and although its performance may incidentally have the effect to extinguish the liability, is not within the statute of frauds if the main purpose and object is not to answer for another but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party.
Evidence examined, and held to show sufficient consideration for the contract.
Appeal from District Court, Chaves County; before Justice Pope.
Action by Eugene F. Hardwick against James W. Rice. Judgment for plaintiff, and defendant appeals. Affirmed.
J. B Atkeson, of Artesia, for appellant.
Ed. S Gibbany and Walter A. Jones, both of Roswell, for appellee.
ROBERTS, C.J. (after stating the facts as above).
There is no dispute as to the facts in this case, as there was no conflict in the testimony, so the only question for determination is whether the facts proven, and as found by the court, establish an original undertaking on the part of appellant, Rice, to execute his promissory note to the appellee, Hardwick, when Fox & Disney had drilled a well for him to the depth of $1,000 feet. Appellant contends that the promise was collateral, therefore within the statute of frauds, and unenforceable. Appellant on the witness stand admitted that he agreed to execute his note to appellee when Fox & Disney had drilled the well to the depth of $1,000 feet, and that he did not impose any conditions whatever upon the promise. He says he understood, however, that it was to be paid out of the surplus coming to Fox & Disney upon the well contract, but did not so state to Hardwick. Courts cannot relieve men from improvident contracts entered into by them, in the absence of fraud or imposition. Rice could have fully protected himself by imposing conditions and stipulations, but did not see fit to do so. The evidence abundantly established the fact that Hardwick would not have sold the machinery to Fox & Disney had it not been for the undertaking or promise on the part of Rice.
Appellant argues that there was no consideration to support the promises, and therefore it is unenforceable. The lower court found that Rice did not have the money to pay cash for drilling the well, and that it was necessary that a part of the contract price be carried; that he therefore advised Mr. Fox that if he could find some one who would join in the drilling of the well, so that part of the note could be carried for a year, he would join in with him in making the three-cornered arrangement by which the well was to be drilled by Fox & Disney. Mr. Rice was to pay for it, but a substantial part of it was to be carried for a year. The consideration was the carrying of the note for $1,000 for a year, thereby enabling Mr. Rice to get the well drilled at once. Certainly the main purpose and object which moved Mr. Rice to enter into the arrangement he did was the willingness on the part of Hardwick to carry his note for a year. He could have had no other object in view.
This being true, the promise comes within the rule laid down in Emerson v. Slater, 22 How. 28, 16 L.Ed. 360: "A promise, although in form to pay the debt of another, and although its performance may incidently have the effect to extinguish that liability, is not within the statute of frauds, if the main purpose and object is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party." See, also, Storm v. U. S., 94 U.S. 83, 24 L.Ed. 42; Davis v. Patrick, 141 U.S. 488, 12 S.Ct. 58, 35 L.Ed. 826.
Finding no error in the record, the judgment of the lower court is affirmed.
On Motion for Rehearing.
A motion for rehearing has been filed and brief presented by counsel, who did not appear for the appellant in the original hearing, now urging for our consideration that the amended complaint fails to state facts sufficient to constitute a cause of action, and that there is a variance between the findings of the trial court and said complaint. Neither of the points were called to the attention of the court in the brief of appellant, or his assignments of error, nor urged upon the original hearing, for which reasons they will not now be considered. Upon the original hearing of a cause, the parties must present to the court all the points upon which they rely, and this court will not consider, upon a motion for rehearing, any alleged error presented for the first...
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