Thomas v. Williams
| Decision Date | 25 September 1935 |
| Docket Number | Case Number: 22829 |
| Citation | 49 P.2d 557,1935 OK 875,173 Okla. 601 |
| Parties | THOMAS v. WILLIAMS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Limitation of Actions--When Cause of Action Accrues on Contract Indemnifying Purchaser of Personalty Against Defective Title.
An action upon a contract to indemnify a purchaser of personal property for any damage from defective title of such property accrues and the statute of limitations commences to run thereon when such purchaser has been compelled to pay a liability because of a defect of such title.
2. Guaranty -- Indemnity--"Guaranty" and "Indemnity" Distinguished.
The difference between a contract of guaranty and a contract of indemnity is that: Oppenheim v. National Surety Co., 105 Okla. 223, 231 P. 1076.
3. Frauds, Statute Of--Promise to Pay Debt of Another not Within Statute Where Main Object of Promisor Is His Own Benefit.
"'Whenever the main purpose and object of the promisor is not to answer for another, but subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.'" Lindley v. Kelly, 47 Okla. 328, 147 P. 1015.
4. Same--Original Promise not Required to Be in Writing.
"'If there is no primary liability of a third person to the promisee which continues after the promise is made, it is an original promise, and need not be in writing.'" Fischer v. Bashwitz, 152 Okla. 231, 5 P (2d) 356.
5. Same--Indemnity--Petition Based Upon Oral Agreement of Defendants to Indemnify Plaintiff Against Loss From Defective Title to Personalty Bought at Execution Sale Held to State Cause of Action.
Where the petition states in substance that defendants (judgment creditors) orally agreed to indemnify plaintiff against loss from defect of title to personal property which was being sold at execution sale, and plaintiff, relying upon said oral contract, purchased said property, and the title thereafter failed resulting in damages to plaintiff the petition states a cause of action and it was error for the trial court to sustain an objection to the introduction of evidence thereunder and to dismiss the action.
6. Judgment--Default Judgment Against Defendant for Want of Answer Properly Refused Where Right to Recover Requires Assessment of Damages.
It is not error to refuse to render default judgment against a defendant for want of answer if plaintiff's right to recovery requires the assessment of damages. Section 672, C. O. S. 1921; Atchison, T. & S. F. Ry. Co. v. Lambert, 31 Okla. 300, 121 P. 654.
Appeal from District Court, Grant County; J. W. Bird, Judge.
Action by Fred Thomas against C. D. Williams, doing business under the trade name of Williams Oil Company et al. From judgment dismissing plaintiff's action upon objection to the introduction of any evidence, plaintiff appeals. Reversed.
J. C. Stevenson, J. E. Falkenberg, and W. H. C. Taylor, for plaintiff in error.
Ridings & Drennan, for defendants in error.
¶1 The parties will be referred to herein as they appeared in the court below.
¶2 This action was originally filed May 20, 1927, by the plaintiff, Fred Thomas, against E. Cordray and Charles Cordray, partners doing business under the firm name of E. Cordray & Son, C. D. Williams doing business under the name of the Williams Oil Company, and the Williams Oil Company, a corporation, but was on the 4th day of January, 1928, dismissed by the court for want of prosecution, and on the 18th day of June, 1928, upon motion of plaintiff, was reinstated as to the defendants, C. D. Williams doing business under the trade name of the Williams Oil Company, and the Williams Oil Company, a corporation, only, the court having overruled the motion to reinstate as to the other defendants. After various preliminary motions and demurrers were filed and amendments made, the plaintiff finally filed his final amended petition on the 12th day of December, 1930.
¶3 The pertinent facts alleged in said amended petition and set forth in the opening statement at the time of the trial, and upon which the court rendered judgment against the plaintiff, are as follows:
¶4 That on the 14th day of October, 1922, there were two actions pending in each of which judgment had been rendered in favor of the plaintiff therein for some amount not disclosed. One of said actions and judgments was pending in the justice court of S. Galladay, Manchester Village, in which E. Cordray & Son was plaintiff and one T. J. Thrush defendant, and the other was pending in the justice court of one L. P. Scott, Wakita, in which the Williams Oil Company was plaintiff and T. J. Thrush was defendant. Apparently, about the same time a separate execution was issued in each of said actions and one constable levied under both of said executions upon one certain "threshing machine outfit" in an effort to satisfy both of said judgments. "That this plaintiff desired to bid at said sale, but refused to do so until said defendants herein, for the purpose of inducing the plaintiff herein and others to bid at said sale, orally guaranteed the title of said property so offered for sale and agreed to hold the plaintiff herein harmless against any claims that might be made against him for the value of, or for the possession of said property, or for the conversion thereof in case he should become the purchaser at said sale." That in reliance upon said agreement the plaintiff purchased said property at said sale for the sum of $ 300, which sum he paid to the constable and took possession of and commenced using said property.
¶5 That thereafter in the district court of Alfalfa county one Sam Henry and T. J. Thrush, partners doing business under the firm name of Thrush & Henry, instituted an action against this plaintiff for conversion of said property; that immediately upon institution of said action this plaintiff notified C. D. Williams and the Williams Oil Company of the pendency of said action against him and demanded that they defend the same, but that said defendants refused and failed to defend or appear in said action, and that this plaintiff was compelled to and did employ an attorney to defend said action and did defend said action as diligently and effectively as possible under the law and the facts of the case. But that on the 19th day of May, 1925, the plaintiffs in said action recovered judgment against this plaintiff, in the sum of $ 348, together with costs; and that this plaintiff on the 19th day of September, 1925, was compelled to pay said judgment, costs and interest in the total sum of $ 450; that in addition thereto this plaintiff was compelled to and did pay his counsel for defending said suit $ 100 and was compelled to and did pay the sum of $ 50 for necessary traveling and other expenses and additional costs in the trial of said cause. Plaintiff prayed judgment in the total sum of $ 820, with interest, which total sum apparently is incorrect but is immaterial for the disposition of this appeal.
¶6 The plaintiff pleads around the statute of limitations by alleging in substance that subsequent to the guarantee of the title and rendition of said judgment against plaintiff and payment thereof by him, said defendants, about April, 1926, removed from the state of Oklahoma and moved to the state of Kansas, and have remained ever since and are now residents of the state of Kansas and were absent from the state of Oklahoma, and service of summons could not be had upon them in the state of Oklahoma since said date.
¶7 To the amended petition the defendant, or defendants, filed an answer, the pertinent parts of which are:
¶8 On the 22nd day of April, 1931, upon the pleadings and issues thus formed, the cause was tried with the aid of a jury. After opening statements were made by each of the parties, upon the plaintiff commencing the introduction of testimony, the defendants objected thereto upon the ground that the plaintiff's amended petition did not state a cause of action, and moved the court to dismiss the plaintiff's action and render judgment in favor of the defendants thereon. The plaintiff, on the other hand, at the same time moved the court for default judgment against the defendant C. D. Williams, on the ground that no answer had been filed on behalf of said defendant. The court sustained the defendants' objection to the introduction of any testimony, dismissed the plaintiff's cause of action and rendered judgment in favor of the defendants and refused to render default judgment as against the defendant C. D. Williams.
¶9 The primary questions presented under the errors assigned are:
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