Bixby v. Church , 28 Or. 242 ( 1895 )

Opinion by

Mr. Chief Justice Bean.

From the bill of exceptions it appears that at the time the services were rendered defendants were engaged in getting out and marketing logs in the vicinity of Coal Creek, in the State of Washington, and. had a contract with one Walter Neish to furnish and deliver logs to them at such place at a stipulated price per thousand, and that the hauling in question was a part of the labor necessary to be done by Neish in performing his contract with the defendants. There was evidence given on the trial from which the jury could have found either (1) that plaintiff was employed by defendants, and that the work was performed for them and on their sole credit, as alleged in the complaint; or, (2) that plaintiff was employed by and rendered the services for Neish, and that defendants agreed to pay him, upon the order of Neish, if they should have funds in their hands belonging to Neish at the time the order should be presented, and not otherwise; or, (3) that the work was performed for Neish, and that defendants verbally agreed to pay therefor in case Neish did not; or, (4) that plaintiff’s contract was made with and services rendered to Neish alone, and that after the contract had been completed he gave plaintiff an order on the defendants for the amount sued for, which, upon presentation, they verbally agreed to pay. As applicable to the third and fourth theories of the case suggested, the defendants at the proper time requested the court to instruct the jury, first, that if defendants agreed merely to pay Neish’s debt in case he did not do so, the verdict must be for them, because the agreement is void under the statute of frauds; and, second, that if the contract was made with Neish, and the work performed for him and not the defendants, plaintiff can not recover, even though defendants afterwards agreed to pay Neish’s debt, because such agreement was not in writing. That these instructions correctly state the law as applicable to this case, is not questioned, but it is claimed that they were given in substance in the general charge which is made a part of the bill of exceptions, and consists of three separate instructions, as follows: “There is some evidence tending to show that the agreement between the parties was that Church and Gaston would pay, upon the order of Mr. Neish, any surplus Neish might have in their hands. They aver there has been no surplus in their hands, consequently they have nothing to pay. If that is the fact about it, your verdict should be for the defendants. There is some evidence still further tending to show they were sureties; that they undertook to guarantee Neish’s debt. Th© plaintiff cannot recover on that theory of the case, because in such case the undertaking of a man who promises to pay another man’s debt must be in writing; not only in writing, but must express the consideration. A man cannot be compelled to pay another’s debt unless his promise is in writing. There is other evidence tending to show that Church and Gaston undertook to pay absolutely this demand. You will examine the whole testimony and determine how the fact was, and if they undertook absolutely to pay, they are bound by that undertaking, and your verdict should be for the plaintiff; but that is a matter you must decide from the testimony in the case.”

These instructions, which are all that were given by the court, contain no reference to the effect and validity of a verbal promise of the defendants to pay made after the work had been performed, in case the jury should find that it was performed under a contract with Neish and not the defendants. The liability of the defendants is made to depend solely on whether their promise was conditional or absolute. The effect of the instructions as given is that if the defendants’ promise was conditional, because made either to pay out of a particular fund, and such fund did not exist, or to pay as surety for Neish in case he did not, plaintiff could not recover, but if the promise was absolute, that is, to pay at all events, the defendants would be liable without reference to whether it was a promise to pay the debt of another or not. Now, there was evidence tending to show, and the defendants claimed the fact to be, that plaintiff was hired, by Neish, and rendered the services for him, and that, if they ever agreed to pay therefor, it was by a verbal promise made after the work had been performed. Although the jury might have found for the defendants on this contention, they were necessarily required, under the instruction of the court, to find a verdict in favor of the plaintiff if they found the promise to have been absolute and unconditional, although not in writing. If the defendants hired the plaintiff to do the work, as he claims in his complaint, they, of course, would be liable as original promisors; but if, on the other hand, the work was done under a contract with Neish, and for him, and the only promise of defendants to plaintiff was a verbal one, made after it had been performed, they would not be liable, however absolute their promise may have been, because such an agreement is within the statute of frauds and void. There was evidence tending to support this theory of the case, and defendants were clearly entitled to have it submitted to the jury by proper instructions, and because an instruction to that effect "was not given, although requested, the case must be reversed and a new trial ordered. There are several other assignments of error in the record, but we have not deemed it important to examine them at this time.

Reversed.