Malone v. Crescent City Mill & Transportation Co.

18 P. 858, 77 Cal. 38, 1888 Cal. LEXIS 615

• Court: California Supreme Court
• Decided: June 27, 1888
• Docket: No. 11121
• Status: Published

Opinion

Paterson, J.

The demurrer was properly overruled. The complaint alleges that the defendant (by its president, J. Wenger) made and entered into the agreement set forth therein. The contract is signed, “ The Crescent City Mill and Transportation Company, by J. Wenger, President.” If the president, as such, had no authority to enter into the contract, it was a matter of defense. The allegation that the defendant made the contract is sufficient, certainly as against a general demurrer. In other respects we think the complaint was sufficient. A copy of the contract is set forth therein. It is assumed by the terms of the contract that there would be at least one hundred dollars due Murray on each run of logs. Under the peculiar language used, if it be conceded that there was not an absolute promise to pay one hundred dollars on each run of logs, the burden was upon the defendant to show that there was less than one hundred dollars due Murray on any raft.

There are no assignments of error in the record. The only points made as to the insufficiency of the evidence are: 1. There is no evidence to show that there is or was anything due from the defendant corporation to the defendant Murray, or to the plaintiff, since the payment of the said three hundred dollars; 2. That the evidence is undisputed and uncontradicted that there was no consideration for the said agreement; and 3. That the agreement was revoked prior to the delivery of the fourth raft.

The contract provides that the payments of one hundred dollars on each run of logs “ shall have precedence to the extent thereof on amount due said Murray by said company on each run of said logs over any other order or indebtedness whatsoever.” The evidence showed that the smallest raft contained 189,447 feet of lumber, and that the price to be paid Murray by the defendant corporation was four dollars per. thousand feet. The amount to be paid Murray for the smallest raft, therefore, was nearly eight hundred dollars. The evidence does not show what expenses were to be deducted from that amount, if any; and the contract, as before stated, expressly provides that the one hundred dollars to be paid the plaintiff on each raft should have precedence over any other order or indebtedness whatsoever. The fact that there was nothing due Murray from the defendant corporation when the rafts were delivered does not alone determine the liability of the defendant in this action. If the defendant chose to pay Murray in full for each raft in cash, or by filling orders in advance of the delivery of the rafts, it did so at its peril, for the contract expressly stipulated against such a contingency.

The written instrument imports a consideration, and there was, in fact, a consideration passing from Murray to the defendant. He continued to deliver logs to it at the prices agreed upon. This was sufficient. In Mc-Laren v. Hutchinson, 18 Cal. 80, it was held that where A owes B, and B owes C, and A and B, without consulting C, agree that A shall pay to C the amount which A owes B, an action could not be maintained by C against A for want of privity; but this decision was practically overruled in Lewis v. Covillaud, 21 Cal. 178, and Mc-Laren v. Hutchinson, 22 Cal. 190. Such a promise, although the party for whose benefit it was made was not cognizant of it when made, is, if adopted by him, deemed to have been made to him, and he may sue upon the promise thus made without a consideration passing from him to the promisor (Lawrence v. Fox, 20 N. Y. 268; Anthony v. Herman, 14 Kan. 497; Kollock v. Parcher, 52 Wis. 399; Pomeroy’s Remedies and Remedial Rights, sec. 139); and it is no objection to the maintenance of a suit by him for whose benefit the promise is made that an action might be brought also against the one to whom the promise was made. (Mason v. Hall, 30 Ala. 601.)

The contract was not revoked or rescinded as claimed by appellant. It was not a contract of guaranty, continuing or otherwise. By its agreement and its acceptance of the rafts from Murray, the defendant corporation became indebted to the plaintiff in the sum of one hundred dollars for each raft, unless, perhaps, it could show that there was not that amount due Murray on any raft after deducting whatever expense the defendant was entitled to deduct from the price to be paid Murray therefor, and without giving precedence to “any other order or indebtedness.” The defendant could not continue to •receive logs from Murray and at the same time repudiate the payment of one hundred dollars on each run. So long as the defendant continued to receive the runs of logs, it continued to receive the consideration passing from Murray to it, and could not under such circumstances, revoke the agreement.

No exceptions were taken to any of the instructions given to the jury, and, as stated before, there are no specifications of errors in the bill of exceptions. Judgment and order affirmed.

Searls, C. J., and Temple, J., concurred.

Hearing in Bank denied.