Tyler v. Smith ( 1881 )

Campbell, J.

Defendant in error recovered in tbe circuit court for Hillsdale county as he bad previously recovered before commissioners appointed by tbe, probate court of that county, on a claim against bis father’s estate for moneys advanced at tbe decedent’s request to relieve Waldo L. Smith, tbe claimant’s brother, from a large indebtedness.

Tbe executors opposed tbe claim on various grounds, tbe chief of which was that if any promise was made by decedent it was void as against tbe statute of frauds. Tbe case was tried by jury.

An objection strenuously urged was tbe twofold claim that tbe proofs were not satisfactory, and tbe claim inequitable. It is enough to say on this matter that we have no power to revise tbe findings of juries on writ of error, and that if there is testimony enough to go to tbe jury, it is for that body to find tbe facts for itself.

Tbe main controversy arose upon tbe claim made by tbe executors that Sylvester B. Smith in all bis dealings for tbe relief of Waldo, was acting on bis own behalf and on bis own account, and that whatever promises were made by tbe decedent were verbal promises to make good bis losses in case Waldo failed to pay him; and that tbe promises referred to testamentary provisions and to nothing else.

There was testimony from which the jury might have found this, but-they did not so find. And whatever we may think we should have done bad we been in their ■ place, we cannot fail to see that there was such a conflict of testimony as left tbe conclusions of fact open to their determination on either theory.

It is alleged as error that tbe court failed to give certain charges desired, bearing on tbe difference between original and collateral undertakings under tbe statute of frauds. But on considering the charges actually given, we find all of these instructions were given very fully and very clearly, and that 'the court could not have done more to carry out the requests.

It is also urged that there was a note of $1000 held by Sylvester against "Waldo, the promise to pay which was clearly collateral, and that the court erred in letting this go to the jury.

There was distinct evidence, however, that this note was given up as part of the arrangement, and that the father’s liability for what he agreed to pay was in no way connected with the continued existence of the claim against Waldo. "Upon this question the charge was also very explicit and excluded any erroneous theories altogether.

If any injustice has been done, it has been by wrong conclusions of fact drawn by the jury. We have no means of knowing how this may be, and no means of correcting it if it exists.

The judgment must be affirmed with costs, and the proceedings allowing the claim certified to the court below.

The other Justices concurred.