Opinion
No. 5074.
June 20, 1928.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W.F. McNaughton, Judge.
Action on account. Judgment for defendant. Affirmed.
E.T. Knudson and C.T. McDonald, for Appellant.
This being a law action, the jury was the sole and exclusive judge of the evidence. The judgment of nonsuit cannot be sustained if under the most favorable view of the evidence, and indulging all proper inferences, a legal liability was not established. ( McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, Ann. Cas. 1918A, 380, 156 P. 115.)
It is the contention of the appellant that one who voluntarily accepts the proceeds of an act done by one assuming, though without authority to be his agent, ratifies the act and takes it as his own with all its burdens as well as benefits. ( Blackwell v. Kercherval, 27 Idaho 537, 149 P. 1060; Waterson v. Rogers, 21 Kan. 529.)
It is further the contention of the appellant that where a person tacitly encourages an act to be done, he cannot afterward exercise his legal right in opposition to such consent, if his conduct or acts of encouragement induced the other party to change his position so that he will be pecuniarily prejudiced by the assertion of such adverse claim. ( Shafer v. Killpack, 53 Utah, 468, 173 P. 948; Leaf v. Reynolds, 34 Idaho 643, 203 P. 458; Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090; Farber v. Page Mott Lumber Co., 20 Idaho 354, 118 P. 664; Swain v. Seamens, 9 Wall. (U.S.) 254, 19 L. ed. 554.)
Robert H. Elder, for Respondent.
If the plaintiff's cause of action may be considered as an action on a contract to pay for supplies purchased by A.L. Clark, in that event the action cannot be maintained, for under the statute of Idaho an agreement to answer the default or debt of another must be in writing. C. S., sec. 7976, in so far as it relates to this subject, reads as follows: "In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents."
"Subdivision 2. A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for in the next section."
Sec. 1624 of the Code of Civil Procedure of California is the same as the Idaho statute. California has construed the statute in several cases.
In Edelman v. McDonell, 126 Cal. 210, 58 P. 528, an action was brought against a father for medical and surgical services rendered to a son, the son not being a minor. The court held that, since the contract was not in writing, it could not be enforced. ( Diamond Coal Co. v. Cook, 6 Cal. Unrep. 446, 61 Pac. 578; Ellison v. Jackson Water Co., 12 Cal. 542; Treadwell v. Nickel, 194 Cal. 243, 228 P. 25.)
"Oral promise party would become responsible for all brick furnished his building, and whatever contract and agreement was made he would see it carried out, or would pay for them 'if William did not,' or words of similar import, is special promise to answer for default of another, and is strictly within provision of statute of frauds." ( Clay v. Walton, 9 Cal. 328 .)
This is an appeal from judgment for defendant entered on motion for nonsuit. Plaintiff alleged that he furnished supplies and services directly to the defendant. The proof showed that he furnished these services and supplies to one A.L. Clark, engaged in logging; that plaintiff kept an account in which he charged these to Clark; that from time to time bills were rendered to Clark in his name, and orders were drawn by him on the defendant company, some of which were paid; and finally the payment of the amounts involved was refused. On cross-examination two successive contracts between Clark and defendant were introduced, under which, together with the evidence of plaintiff, it was plainly shown that Clark was an independent contractor and not the agent of, and with no authority to bind, the defendant. Objection was made to the introduction of these contracts as "incompetent, irrelevant and immaterial," but no objection was made to their introduction as not proper cross-examination.
It is contended upon certain oral evidence that the company had promised to pay amounts due from Clark. Such agreement, if any, was plainly within subdivision 2 of C. S., sec. 7976, a promise to answer for the debt, default or miscarriage of another, and not within any of the exceptions of C. S., sec. 7977. There was no evidence in writing of any such agreement or note or memorandum thereof, nor was there any pleading or evidence, as contended, upon which the defendant was estopped to deny liability.
At the close of plaintiff's case no inference could properly be drawn from the evidence presenting any question of fact for the jury.
The judgment is affirmed. Costs to respondent.
Wm. E. Lee, C.J., and T. Bailey Lee, J., concur.