Davis v. Blum
Davis v. Blum
Opinion of the Court
The opinion of the Court was delivered by
I think the judgment below should be affirmed for these reasons:
Nor does the fact that the statute makes the losing party liable for costs affect the question. The parties knew that to be the law. But plaintiff told defendant that he would not proceed with the case and do the work in reliance upon the statutory liability of Mrs. Blum. Thereupon defendant said to him, “Go ahead and do the work, and I will pay you.” There was nothing collateral about that. It was a direct and original undertaking. Plaintiff certainly had the right to agree to waive Mrs. Blum’s liability to him under the statute, and to look solely to defendant for his pay, and the verdict establishes that as what was done.
Footnote. — Original or collateral nature of an oral promise within statute of frauds as question of fact, see note in 36 A. & E. Ann. Cas. 1915b, 257. Depending on intention of parties, see 31 A. & E. Ann. Cas. 1914a, 490, 15 L. R. A. 214 to 224. Distinction under statute of frauds between sales of personalty and agreements for work and labor, see notes in 14 L. R. A. 230, 30 L. R. A. (N. S.) 319, and 43 L. R. A. (N. S.) 97.
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- 1. Frauds, Statute op — Evidence — Question for Jury. — When the facts are undisputed or susceptible of only one inference, it is a question of law whether the contract sued on is an original or a collateral undertaking within the statute of frauds; but where there is a conflict in evidence, or it is open to more than one inference, it is for the jury. 2. Frauds, Statute of — Review—Findings of Trial Court. — In an action on a contract claimed to be within the statute of frauds as an agreement to pay the debt of another, findings of the trial Court are not reviewable unless wholly unsupported by evidence. 3. Frauds, Statute of — Promise to Answer for the Debt of Another —Original or Collateral Promise. — Where plaintiff as Judge of probate told the defendant that he would not go ahead with the will case in reliance on the statutory liability of the defendant’s wife, and defendant promised to pay the costs of the case, and plaintiff agreed to look solely to the defendant, it was not a collateral agreement to pay the debt of another, but a direct and original undertaking and without the statute of frauds. 4. Wills — Liability of Third Person for Costs — Effect of Judgment. — In an action by a Judge of probate on an agreement by the defendant to pay the costs in a will action in which the defendant’s wife was a party, the fact that the costs in the will action were entered against the defendant’s wife was not conclusive of her liability to this plaintiff, as the defendant who had assumed their payment was not a party to that action. 5. Frauds, Statute of — Promise to Answer for the Debt of Another —Charges on Creditor’s Books. — Charges and entries on creditor’s books may be explained in determining whether agreements to be responsible are original or collateral promises, within the statute of frauds. 6. Wills — Costs—Liability of Third Person.- — The fact that the statute makes the losing party liable for costs does not relieve the defendant from liability, as he agreed to pay them knowing the law. 7. CoNtracts — Consideration — Agreement to Pay Costs. — Although the defendant had no legal interest in the will case, since a loss or detriment to the promisee is sufficient as consideration as well as benefit to the promisor,, the work done by the plaintiff and his agreement to look solely to the defendant for his pay was sufficient consideration for the defendant’s promise.