Rice v. Hardwick

124 P. 800, 17 N.M. 73

• Court: New Mexico Supreme Court
• Decided: March 23, 1912
• Docket: No. 1443
• Status: Published

Opinions

OPINION OP THE COURT.

ROBERTS, C. J.

There is no dispute as to the facts in this case, as there was no conflict in the testimony, so the only question for determination is, whether the facts proven, and as found by the Court, establishes an original undertaking on the part of appellant Eice, to execute his promissory note to the appellee, Hardwick, when Fox & Disney had drilled a well for him to the depth of 1,000 feet. Appellant contends that the promise was collateral, therefore within the statute of frauds, and unenforcible.

2 Appellant, on the witness stand admitted that he agreed to execute his- note to appellee, when Fox & Disney had drilled the well to the depth of 1,000 feet, and that he did not impose any conditions whatever upon the promise. He says he understood however, that it was to be paid out of the surplus coming to Fox & Disney upon the well contract, but did not so state to Hardwick. Courts can not relieve men from improvident contracts, entered into by them, in the absence of fraud or imposition. Eice could have fully protected himself by imposing conditions and stipulations, but did not see fit to do so. The evidence abundantly established the fact that Hardwick would not have sold the machinery to Fox & Disney, had it not been for the undertaking or promise on the part of Bice.

Appellant argues that there was no consideration to support the promises, and therefore it is unenforcible. The lower court found that Eice did not have the money to pay cash for drilling the well, and that it was necessary that a part of the contract price be carried; that he therefore advised Mr. Fox, that if he could find some one who would join in the drilling of the well, so that part of the note could be carried for a year, that he would join in with him in making the three cornered arrangement by which the well was to be drilled bjr Fox & Disney. Mr. Eice was to pay for it, but a substantial part of it was to be carried for a year. The consideration was the carrying of the note for $1,000.00 for a year, thereby enabling Mr. Eice to get the well drilled at once. Certainly the main purpose and object, which moved Mr. Eice to enter into the arrangement he did, was the willingness on the part of Hardwick to cany his note for a year. He could have had no other object in view. This being true the promise comes within the rule laid down in Emerson vs. Slater, 22 How. 28:

1 "A promise, although in form to pay the debt of another, and although its performance may incidentally have the effect to extinguish that liability, is not within the statute of frauds if the main purpose and object is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party. See also Stern v. U. S. 94 U. S. 83; Davis v. Patrick, 141 U. S. 488.

Finding no error in the record the judgment of the lower court is affirmed.