Pratt v. Fishwild & Williams

Bishop, O. J.

As we gather from the record, the trial was conducted on behalf of plaintiff and 0. F. Kimball, executor, by C. F. Kimball as attorney. On behalf of plaintiff there was introduced in evidence the notes in suit,' and the testimony of 0. F. Kimball to the effect that Eoy Williams had admitted to him that the defendant firm was composed of E. Fishwild and Eoy Williams, and that E. S. Williams had signed the notes in suit as surety. Plaintiff then rested, whereupon a motion was made on her behalf and on behalf of the defendant Kimball, executor, for judgment on the pleadings against Fishwild & Williams and E. Fishwild and Eoy Williams as principals, and the defendant Kimball, executor, as surety. This motion was overruled. A motion was made after verdict in arrest of judgment and for judgment non obstante veredicto, based upon the same grounds stated above, among others, and this was overruled.

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r claims: exe”utor:°f jurisdiction.

*645 The contention of counsel for - appellant, if we rightly interpret, is that, in the absence of a cross-petition as be *646 tween the defendant firm and the defendant execut jr, the court had .no jurisdiction to determine any question concerning the respective liabilities 0f several defendants as between themselves. With this, we are not disposed to agree in all strictness. It is.true that no formal cross-petition was filed. But the action was commenced at the instigation of the executor, and.Mrs.' Pratt was but the plaintiff nominally. No one had disputed her rights, and it was not expected that any one would be found to dispute them. She had filed her claim with the executor, and, we may assume, was resting in the assurance that such claim would be paid-in full out of the estate. The party having the prime interest in the institution of the suit was the executor by whom iu fact it was prosecuted. Now, it is manifest that the executor believed that his testator was a surety only, and the suit was accordingly brought against the firm of Fishwild & Williams and the individual partners in said firm only. The answer of the defendants, however, disclosed the contention on their part that B. S. Williams was not a mere surety, but jointly liable on the notes in suit. The defendant firm thereupon joined with the plaintiff in demanding that the executor come in as a party and plead, which he did, making the specific allegation that the liability of his testator was that of a surety only, and praying judgment that his relation as such surety be established. It is to be noted, also, that in the reply filed in the name of the plaintiff the'allegations all have relation -to matters in which the executor alone was interested. The plaintiff was not in the least concerned therein. The executor was within the jurisdiction of the court, and by his pleading made the direct issue as to the character of his liabiilty, and this was • undoubtedly inspired by the pleading on the part of the defendant firm. To all intents and purposes, therefore, the answer of the firm was a cross-bill, although not so entitled, and the answer of the1 *647 executor was an answer thereto. Ihe cause was certainly: tried by the court upon that theory, and we cannot dis- ■ cover-that the executor was prejudiced thereby. He went to trial without objection as to the issues, save as made in. the joint motion for judgment upon the pleadings, and he made no specific objection on that ground untilmotion for new trial after verdict was made. Although he joined-with the plaintiff in making general objections to the evidence offered by defendants to sustain the allegations of their answer, yet he introduced such evidence in opposition thereto as he saw fit, and there is no suggestion that he was prevented from producing all the evidence, to be-had bearing upon the subject. So, too, he treated the reply as if filed by him, and by proper objections raised the questions made thereby, and secured a ruling of the court thereon. It was certainly desirable that all the issues between the parties should be tried in one action, and as we. think the exebutor was given the opportunity to and did present his whole case, we conclude that there should be no interference with the judgment by reason of the informality complained of. It is a provision óf the Code (section 3601) that “the court, in every stage of an action must disregard any error or defect in the proceeding, which does not affect the substantial rights of the adverse party; and no judgment may be recovered or affected by reason of such error or defect.” Our conclusion also finds' support, in principle at least, in the following authorities: Cotes & Patchin v. Davenport, 9 Iowa, 238 ; Doniphan v. Street, 17 Iowa, 321 ; Bank v. Barber, 56 Iowa, 564 ; Hoyt v. Hoyt, 68 Iowa, 706 ; White v. Bryam, 96 Iowa, 166 ; Warren v. Chandler, 98 Iowa, 244 .

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2 principal deterSuíaIty^coasiler-" ation'

*647 II. By its instructions the court told the jury that there was no sufficient evidence to establish the relation-ship of R. S. Williams as a partner in the firm of Fishwild. & Williams. The sole question submitted was whether or not R. S. Williams had agreed to become liable for and *648 feo pay one-balf of the indebtedness of said firm. Counsel for appellant contends that it was error to submit such question, for that it had not been shown that such agreement, if made, was based upon any sufficient consideration. We think otherwise. It is made to appear that R. S. Williams was instrumental in securing the introduction of his son, Roy, into the firm. He became then obligated in connection therewith on his account, and thereafter and at the time of the alleged agreement he was largely involved as a surety for his son and for the firm. The half interest in the property and business was sold by the father, the son joining in the conveyance; and the whole of the proceeds were taken possession of by the former, and disposed of ¡by him as he saw fit. Moreover, there is evidence upon which the jury might find that, to effect a sale to the pur.chaser, and to secure his introduction into the business, .and on the faith of his agreement to pay, he procured the .consent of Fishwild to accept of such purchaser as a partner, and to forego the accounting, etc., incident to a dissolution of partnership. We cannot doubt but that out of this a sufficient consideration arose.

3. statute of :mSnttoapaye ,the debt of -.another. Ill: It is a further contention that such agreement, if made, was within the statute of frauds. As we have stated in the next preceding division of this opinion, there was evidence from which the jury might draw the conclusion that an agreement to pay was . made by R. S. Williams, as alleged, and that :such agreement was predicated upon the consideration ;alleged. Accepting this as the state of the record, we have no case coming within the statute of frauds. By taking the property and appropriating the proceeds thereof under the circumstances alleged, and under the agreement as alleged, R. S. Williams made the firm debts to the extent of oneffialf thereof his own debts. He then became primarily liable. “Whenever the main purpose of the person *649 promising is not to answer f'o.r the debt of another, but-to subserve some object of his own, the promise is not within the statute of frauds, although in form it may have the ■effect of extinguishing the liability of another.” Johnson v. Knapp, 36 Iowa, 616 . See, also, Chamberlin v. Ingalls, 38 Iowa, 300 ; Blair Town Lot & Land Co. v. Walker, 39 Iowa, 406 ; Emerson v. Slater, 22 How. 28 ( 16 L. Ed. 330 ); Davis v. Patrick, 114 U. S. 479 (12 Sup. Ct. Rep. 58, 35 L. Ed. 826 ).

A rr.a-nvr efta'tefthne of fiimg. IV. There is. no merit in the contention that the ■claim should not have been allowed against the estate, for that the same was not filed and noticed for hearing within twelve months from notice of appointment of the executor. We have, no data from which we can determine the precise facts, but, in our view, such would be immaterial. Certain it is that the claim was filed against the estate, ¡and the liability to the plaintiff on such claim as a whole is not in dispute. \ The defendants are not in the attitude ■of making any claim against the estate. In effect, they are simply insisting that the estate shall pay the whole of plaintiff’s debt, and that their liability to the estate shall not exceed one-half the amount so paid. Such is not a ■claim within the meaning of the statute requiring claims to be filed and proven.

V. We have inquired into each of the other errors ■assigned, and find nothing of sufficient merit to warrant us in disturbing the judgment. We think the case was fairly submitted to the jury by the instructions, and no ■question is made as to tho form of the verdict or judgment. —Ae’btj&mjsd.