Flenniken v. Harmon

168 S.W. 1081, 113 Ark. 542, 1914 Ark. LEXIS 535

• Court: Supreme Court of Arkansas
• Decided: June 29, 1914
• Status: Published

Opinion

Wood, J.,

(after stating the facts). The appellant asked for an instructed verdict in his favor upon the undisputed evidence, and he was entitled to it.

Viewing the evidence in the most favorable light for the appellee, the promise of appellant to be responsible ’ for the negro whom the appellee had in custody meant no more than if the negro was released and failed to pay the judgment against him, that he (appellant) would pay the same.

The testimony showed that, after the negro was released and had gone away, the appellee continued a search for him for something like six months before he mentioned the matter to appellant about paying the fine. The reason he gave for this conduct was that he thought that appellant was also endeavoring to retake the riegro, Frank Daniels.

The appellant testified that he did not promise to pay the negro’s fine, but wanted the negro released, so that the latter could see his father-in-law and get the money to pay Ms fine. Appellant said lie had never seen the negro before be was employed to defend Mm.

The effect of the undisputed testimony was tantamount to a promise on the part of appellant to pay the negro’s fine and costs in the event that the negro did not pay it himself. The negro was not discharged from the obligation to pay the fine and costs by the promise of appellant to pay the same. The judgment was not satisfied by virtue of that promise, and, if the negro had been recaptured, he would have been liable for the fine and costs. There was no new and independent consideration beneficial to appellant, and inducing him to make the promise upon which appellee relies. The promise of the appellant, at most, was but a collateral undertaking to satisfy the judgment against the negro, Daniels, in the event that Daniels, himself, was not made to pay the same. And the promise was therefore clearly witMn the statute of frauds.

The language of appellant to the .effect that he would ' be responsible for the negro, that he was going to appeal the case, could have no other meaning than that, if the Supreme Court affirmed the judgment and Daniels did not pay it and was not present so that he could be taken into custody and forced to pay it, that in that event appellant would pay it. In other words, it was not an unconditional promise upon the part of appellant to pay the judgment against Daniels, but was only a promise to be surety for Mm, and to see that he paid it. In other words, this record shows that the main purpose of appellant was to answer for Daniels, but not to “subserve some pecuniary business purpose of his own, involving either benefit to himself or damage” to the appellee. His promise, therefore, was within the statute of frauds. Kirby’s Digest, § 3654, subdiv. 2; Kurtz v. Adams, 12 Ark 174; Chapline v. Atkinson, 45 Ark. 67; Scott v. Moore; 89 Ark. 324; Gale v. Harp, 64 Ark. 465; Long v. McDaniel, 76 Ark. 292.

It follows that the court erred in not granting appellant’s prayer for instruction, directing the jury to return a verdict in his favor.

The judgment is therefore reversed, and the cause is dismissed.