Farmers Grain, Lumber & Coal Co. v. Taylor ( 1929 )

Rose, J.

Plaintiff sued Sherman Taylor, Sr., defendant, to recover $363.89 with interest on an account for merchandise delivered to his son, Edwin Taylor, at the special request of defendant upon the latter’s oral promise to pay plaintiff therefor. The answer was a general denial. Pending litigation defendant died and the cause was revived in the name of Sherman Taylor, Jr., administrator, defendant. The case was tried to a jury and at the close of the testimony the district court directed a verdict in favor of plaintiff for $395.18. From a judgment for that sum defendant appealed.

One of the assignments of error challenges as erroneous the peremptory instruction in favor of plaintiff. During the trial the parties stipulated that the amount due plaintiff from defendant, if anything, was $395.18. Plaintiff took •the position that the senior Taylor procured the merchandise for his son by means of an original, oral promise to pay for it. The defense was that the promise, if made, was one to answer for the debt of another and, not being in writing, was void under the statute of frauds. An examination of the record on this issue shows there is evilence tending to prove the defense, thus presenting a question for the jury. The peremptory instruction in favor of plaintiff was therefore erroneous. I* follows that the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.