Sherer v. Rubedew

• Decision Date: 05 December 1905
• Citation: Sherer v. Rubedew, 11 Idaho 536, 83 P. 512 (Idaho 1905)
• Parties: SHERER v. RUBEDEW
• Court: Idaho Supreme Court

83 P. 512

11 Idaho 536

SHERER v. RUBEDEW

Supreme Court of Idaho

December 5, 1905

NOVATION-STATUTE OF FRAUDS.

1. Where D. works for R. and on settlement therefor R. agrees to pay C. and S., to whom D. is indebted, the debt thus assumed is the debt of R. and is not within the statute of frauds.

2. In such case the indebtedness of R. to D. is liquidated by a payment to C. and S., and the effect of the agreement is a substitution of a different payee.

3. Evidence examined and held sufficient to establish a novation and sustain the verdict and judgment.

(Syllabus by the court.)

APPEAL from District Court in and for Latah County. Honorable Edgar C. Steele, Judge.

Action for debt. From a judgment for plaintiff and an order denying a new trial, defendant appealed. Affirmed.

Judgment affirmed with costs in favor of respondent.

Stewart S. Denning, for Appellant.

We maintain that before a party can maintain an action in his own name it must have been on a written contract made at the time the contract was entered into, and not an assignment of a debt to pay an existing indebtedness. (Pomeroy's Rights and Remedies, sec. 172 et seq.; Robbins v. Deverill, 20 Wis. 142 (cited under Pomeroy's Rights and Remedies sec. 173); Bowman v. Ainslie, 1 Idaho 644.) Here plainly, there was no novation. By Sherer's own showing Rubedow refused to accept the order until the contract was completed. This showing excludes it from Casey v Miller, 3 Idaho 567, 32 P. 195, and brings it strictly within the rule of Clay v. Walton, 9 Cal. 329.

George G. Pickett, for Respondent.

This contract is not within the statute of frauds, requiring the promise to pay the debt of another to be in writing. When Rubedew pays this debt he is simply paying his own debt to a different person from the one to whom he originally agreed to pay it. He is simply paying his own debt, and not the debt of another. In support of this position we cite Casey v. Miller, 3 Idaho 567, 32 P. 195; Smith v. Caldwell, 6 Idaho 436, 55 P. 1065; Cerrusite Min. Co. v. Steele, 18 Colo. App. 216, 70 P. 1091; Lewis v. Covillaud, 21 Cal. 178; Sacramento Lumber Co. v. Wagner, 67 Cal. 294, 7 P. 705; Brandt on Suretyship and Guaranty, sec. 63. We will not go any further in citing authorities upon this question, as we feel that it is too well settled, but we call the court's attention to the leading case of Mallory v. Gillett, 21 N.Y. 412.

AILSHIE, J. Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

In this case judgment was entered for plaintiff, and defendant appealed therefrom, and from an order denying his motion for a new trial. The appellant contends that the complaint does not state facts sufficient to constitute a cause of action that the evidence was not sufficient to justify the verdict and judgment, and that certain of the court's instructions were erroneous. The complaint alleges that during the year 1903, Collins & Sherer sold and delivered to one Fred L. Dahlgren paints and oils for which there was a balance of $ 60.03 due, no part of which had been paid, and that Dahlgren used the paints and oils so furnished in painting the dwelling-house of the defendant Rubedew in Moscow, Idaho. It is further alleged that Dahlgren had entered into a contract with the defendant by which he agreed to furnish the paints and oils and paint defendant's dwelling-house for the sum of $ 100; that Dahlgren proceeded to and did perform the work agreed upon, and that the defendant paid him the sum of $ 40 on the contract price, and that at the time of making such payment the defendant promised and agreed with Dahlgren to pay the remaining sum of $ 60 to Collins & Sherer for the paints and oils for which Dahlgren was indebted. Plaintiff alleges that Collins & Sherer assigned the claim to the plaintiff, and that thereafter the defendant personally acknowledged to the plaintiff that he had retained the sum of $ 60 due Dahlgren for the paints and oils, and thereupon promised and agreed to pay plaintiff such sum. We think the complaint clearly states a cause of action against the defendant.

Defendant answered this complaint by denying the principal allegations thereof. At the trial, however, the case resolved itself into practically only one issue. Rubedew admitted that he entered into the contract with Dahlgren whereby Dahlgren was to...