McCARTY, J.,
after making the forege lg statement of the case, delivered the opinion of the court.
Appellant contends that the court erred in making its eighth and ninth findings of fact referred to in the foregoing statment of the case, and that these findings are not only unsupported by, but are against, the evidence. It appears from the record that on June 30, 1896, Woodman paid a debt of $5,000 and interest thereon, which he and Bamberger jointly owed, and accepted the note sued on for the portion of the debt he had thus paid for Bamberger. Woodman placed the note in the hands of W. O. Hall for collection, who then wras a practicing attorney, but who at the time of the trial wras a district judge. Judge Hall, who retained possession of the note until after Woodman’s death, was called as a witness and testified, and his evidence is not contradicted, that about two months after the note became due, which was subsequent to the alleged agreement between Woodman and Bamberger, and which agreement is pleaded as a defense in defendant’s answer, he (Hall) presented the note to Bamberger for payment, and told Bamberger that he would like to have him pay it, that Mr. Woodman wanted it settled up; and he, (Bam-berger) said it was not convenient, but he would take care of it shortly; that he again presented the note for payiqent about four months later, and that Bamberger said that he was not ready to pay it; that he would rather settle it later. J. H. Woodman, another witness whose testimony is not contradicted, testified in part as follows: “I met Mr. Bamber-ger on the street (February, 1904), and he said, 'Harry, by xhe way, I would like to get that note settled that the estate has against me.’ [Referring to the note in question.] And he said,'I made Judge Zane [counsel for the administrator] a proposition to settle it,’ offering him either two thousand, or [380]*380twenty five hundred dollars. . . . ‘I wish you would talk the matter over with Judge Zane.’ Q. What did he say to you how much was due on the note [referring to Bamberger] ? A. He said he thought that was a fair offer; that he had paid out some items that he and my uncle (J. B. Woodman), were interested in, and by deducting them, he thought that would be a fair offer in settlement of the note. Q. Bor how much ? A. Twenty-five or twenty-sis hundred. He said something like that.” One witness for1 the defendant testified that he was present in Mr. Bamberger’s office about the last of October, 1896, and heard the agreement referred to made; and his testimony as to the terms of the agreement, so far as material here, is as follows: “He [Woodman] says, ‘I am furthermore now on that joint note,’ or ‘notes’ — I forget the word, whether ‘note’ or ‘notes’ was used ■ — ‘to the National Bank of the Republic in the sum of $20,-000 with you. I am also on the bonds with you in these condemnation suits for the Davis county lands. If you will pay these obligations, or see them paid, I will then return you your note for $2,500 which you gave me for half of the $5,000 which I paid the Salt Lake Valley Loan & Trust Company; and, furthermore, then you can have the railroad,’ and Mr. Bamberger finally said, ‘Well, I will do it.’” Another witness for defendant testified that he had a conversation with Woodman in October, 1896, and that “he [Woodman] said he was jointly liable with Simon Bamberger for some notes to the National Bank of the Republic for money borrowed for the railway, and was also on some condemnation bonds for rights of way, and that he held Bamberger’s note for $2,500 for some indebtedness of the railway which he had been obligated to pay to the Salt Lake Valley Loan & Trust Company, and that he was going to turn this note and all his stock in the railway over to Bamberger, if Bamberger would pay the railway indebtedness and relieve him of all liability in the matter.” Other witnesses testified that Woodman had made statements to them which tended to show that such an agreement had been made.
Appellants contend that taking into consideration the evidence of the different witnesses who testified in the case, in [381]*381■connection, witb tbe facts tbat in tbe first answer Bamberger denied tbe execution and delivery of tbe note in question, and also alleged therein tbat said note was given, but not intended by either of tbe parties as an absolute and uncondi\tional promise to pay, but as an undertaking on tbe part of tbe defendant, Bamberger, for tbe faithful performance of certain other business transactions by him; and tbat about one year thereafter be verified and filed an amended answer, in which be admitted tbe execution and delivery of tbe note, but pleaded payment as hereinbefore stated — the record preponderates in favor of appellant tbat tbe alleged agreement pleaded by defendant as a defense in this case was never made and entered into between Woodman’ and Bamberger. But, as this is an action at law, and there is some substantial evidence to tbe effect tbat tbe agreement was made as alleged in tbe answer, under section 9, article 8, of the Constitution of this State, as has been repeatedly held by this court, we are prohibited from interfering witb the findings of tbe trial court on this point.
While-we must assume, for tbe purposes of this case, tbat tbe agreement was made, we are satisfied tbat tbe record shows a total failure of consideration on tbe part of Bamber-ger, for it shows conclusively tbat be neither paid nor caused to be paid the obligations, or any part thereof, mentioned in the alleged agreement. Tbe record shows tbat tbe Great Salt Lake & Hot .Springs Bailway ■ Company made and executed a -mortgage on all of its property, both real and personal, in favor of tbe National Bank of tbe Bepublic to secure tbe payment of tbe note for. $20,000 signed by Woodman and Bamberger, as well as another note of the same amount and bearing tbe same date. On January 27, 1896, tbe bank commenced an action to foreclose tbe mortgage, and made Bam-berger and Woodman defendants in tbe action. On September 26, *1896, a decree was entered in favor of the bank, and it appearing tbat tbe Great -Salt Lake & Hot Springs Bail-way Company bad become insolvent, defendant, Bamberger, was appointed receiver, and as such receiver Bamberger took charge of all property, both real and personal, belonging to [382]*382said railway company. The decree provided that the receiver proceed to sell all the property, both real and personal, belonging to said company, and in pursuance of the decree and order of sale the property was duly advertised; and on October 28, 1896, it was sold by the receiver at public sale to the Salt Lake & Ogden Railway Company for the sum of $10,000. On October 29, 1896, the sale was approved by the court, and the receiver was ordered to pay certain obligations of the Great Salt Lake & Hot Springs Railway Company, among which was the note of $20,000 to the National Bank of the Republic, signed by Woodman and Bamberger; and it was further ordered that said Woodman and Bamberger be released from any and all obligations to plaintiff bank growing out of said indebtedness. On October 30, 1896, the receiver filed his report with the court, showing he had paid in full said indebtedness in pursuance of the order of court, and on said date an order was entered discharging the receiver. It will thus be seen that Bamberger absolutely did nothing of his own volition as a private individual by way of paying or causing to be paid the obligations referred to.
The gist of the expressed terms of the oral contract is that, in consideration of Bamberger paying or causing to be paid the bank notes and condemnation bonds.
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McCARTY, J.,
after making the forege lg statement of the case, delivered the opinion of the court.
Appellant contends that the court erred in making its eighth and ninth findings of fact referred to in the foregoing statment of the case, and that these findings are not only unsupported by, but are against, the evidence. It appears from the record that on June 30, 1896, Woodman paid a debt of $5,000 and interest thereon, which he and Bamberger jointly owed, and accepted the note sued on for the portion of the debt he had thus paid for Bamberger. Woodman placed the note in the hands of W. O. Hall for collection, who then wras a practicing attorney, but who at the time of the trial wras a district judge. Judge Hall, who retained possession of the note until after Woodman’s death, was called as a witness and testified, and his evidence is not contradicted, that about two months after the note became due, which was subsequent to the alleged agreement between Woodman and Bamberger, and which agreement is pleaded as a defense in defendant’s answer, he (Hall) presented the note to Bamberger for payment, and told Bamberger that he would like to have him pay it, that Mr. Woodman wanted it settled up; and he, (Bam-berger) said it was not convenient, but he would take care of it shortly; that he again presented the note for payiqent about four months later, and that Bamberger said that he was not ready to pay it; that he would rather settle it later. J. H. Woodman, another witness whose testimony is not contradicted, testified in part as follows: “I met Mr. Bamber-ger on the street (February, 1904), and he said, 'Harry, by xhe way, I would like to get that note settled that the estate has against me.’ [Referring to the note in question.] And he said,'I made Judge Zane [counsel for the administrator] a proposition to settle it,’ offering him either two thousand, or [380]*380twenty five hundred dollars. . . . ‘I wish you would talk the matter over with Judge Zane.’ Q. What did he say to you how much was due on the note [referring to Bamberger] ? A. He said he thought that was a fair offer; that he had paid out some items that he and my uncle (J. B. Woodman), were interested in, and by deducting them, he thought that would be a fair offer in settlement of the note. Q. Bor how much ? A. Twenty-five or twenty-sis hundred. He said something like that.” One witness for1 the defendant testified that he was present in Mr. Bamberger’s office about the last of October, 1896, and heard the agreement referred to made; and his testimony as to the terms of the agreement, so far as material here, is as follows: “He [Woodman] says, ‘I am furthermore now on that joint note,’ or ‘notes’ — I forget the word, whether ‘note’ or ‘notes’ was used ■ — ‘to the National Bank of the Republic in the sum of $20,-000 with you. I am also on the bonds with you in these condemnation suits for the Davis county lands. If you will pay these obligations, or see them paid, I will then return you your note for $2,500 which you gave me for half of the $5,000 which I paid the Salt Lake Valley Loan & Trust Company; and, furthermore, then you can have the railroad,’ and Mr. Bamberger finally said, ‘Well, I will do it.’” Another witness for defendant testified that he had a conversation with Woodman in October, 1896, and that “he [Woodman] said he was jointly liable with Simon Bamberger for some notes to the National Bank of the Republic for money borrowed for the railway, and was also on some condemnation bonds for rights of way, and that he held Bamberger’s note for $2,500 for some indebtedness of the railway which he had been obligated to pay to the Salt Lake Valley Loan & Trust Company, and that he was going to turn this note and all his stock in the railway over to Bamberger, if Bamberger would pay the railway indebtedness and relieve him of all liability in the matter.” Other witnesses testified that Woodman had made statements to them which tended to show that such an agreement had been made.
Appellants contend that taking into consideration the evidence of the different witnesses who testified in the case, in [381]*381■connection, witb tbe facts tbat in tbe first answer Bamberger denied tbe execution and delivery of tbe note in question, and also alleged therein tbat said note was given, but not intended by either of tbe parties as an absolute and uncondi\tional promise to pay, but as an undertaking on tbe part of tbe defendant, Bamberger, for tbe faithful performance of certain other business transactions by him; and tbat about one year thereafter be verified and filed an amended answer, in which be admitted tbe execution and delivery of tbe note, but pleaded payment as hereinbefore stated — the record preponderates in favor of appellant tbat tbe alleged agreement pleaded by defendant as a defense in this case was never made and entered into between Woodman’ and Bamberger. But, as this is an action at law, and there is some substantial evidence to tbe effect tbat tbe agreement was made as alleged in tbe answer, under section 9, article 8, of the Constitution of this State, as has been repeatedly held by this court, we are prohibited from interfering witb the findings of tbe trial court on this point.
While-we must assume, for tbe purposes of this case, tbat tbe agreement was made, we are satisfied tbat tbe record shows a total failure of consideration on tbe part of Bamber-ger, for it shows conclusively tbat be neither paid nor caused to be paid the obligations, or any part thereof, mentioned in the alleged agreement. Tbe record shows tbat tbe Great Salt Lake & Hot .Springs Bailway ■ Company made and executed a -mortgage on all of its property, both real and personal, in favor of tbe National Bank of tbe Bepublic to secure tbe payment of tbe note for. $20,000 signed by Woodman and Bamberger, as well as another note of the same amount and bearing tbe same date. On January 27, 1896, tbe bank commenced an action to foreclose tbe mortgage, and made Bam-berger and Woodman defendants in tbe action. On September 26, *1896, a decree was entered in favor of the bank, and it appearing tbat tbe Great -Salt Lake & Hot Springs Bail-way Company bad become insolvent, defendant, Bamberger, was appointed receiver, and as such receiver Bamberger took charge of all property, both real and personal, belonging to [382]*382said railway company. The decree provided that the receiver proceed to sell all the property, both real and personal, belonging to said company, and in pursuance of the decree and order of sale the property was duly advertised; and on October 28, 1896, it was sold by the receiver at public sale to the Salt Lake & Ogden Railway Company for the sum of $10,000. On October 29, 1896, the sale was approved by the court, and the receiver was ordered to pay certain obligations of the Great Salt Lake & Hot Springs Railway Company, among which was the note of $20,000 to the National Bank of the Republic, signed by Woodman and Bamberger; and it was further ordered that said Woodman and Bamberger be released from any and all obligations to plaintiff bank growing out of said indebtedness. On October 30, 1896, the receiver filed his report with the court, showing he had paid in full said indebtedness in pursuance of the order of court, and on said date an order was entered discharging the receiver. It will thus be seen that Bamberger absolutely did nothing of his own volition as a private individual by way of paying or causing to be paid the obligations referred to.
The gist of the expressed terms of the oral contract is that, in consideration of Bamberger paying or causing to be paid the bank notes and condemnation bonds. Woodman agreed to surrender and cancel the note sued on. The doing of the one thing was the consideration for the doing of the other. It is not claimed that Bamberger paid the bank notes, but that he caused them to be paid. Before it can be successfully claimed that he caused them to be paid, it must be shown that he did something which produced or effected the result of payment; otherwise the consideration moving from him failed. The evidence is wanting that he did anything which produced or effected this result. What he did in the premises was done as an officer of the court, and in the performance of a legal duty thereby commanded of him, and the performance of this duty produced and effected the result of payment, which performance and result obtained was not at all dependent upon the agreement made between him and Woodman, nor at all affected thereby. To the contrary, all [383]*383.the evidence in the record showing what Bamberger did by way of organizing the new company, paying the money into its treasury for its capital stock, and with which the new company purchased the property of the old company at the receiver’s sale, and of winding up the business of the old road which resulted in the payment of.the bank notes and condemnation bonds, were all done prior to the making of the said oral agreement. In other words, what Bamberger did was not done by virtue or in pursuance of this oral agreement, or as and for an act of himself.
While the court found that the oral contract between Bam-berger and Woodman was made about the 1st day of October, 1896, the undisputed evidence introduced by Bamberger himself shows conclusively that it was made and entered into about the last of October, 1896. On September 26, 1896, a judgment was had and entered in favor of the bank on the bank notes, and Bamberger appointed receiver of the old road. On October 28, 1896, its property was sold for $70,-000. On the 29th the sale was affirmed, and on the 30th his his report filed, showing the payment in full of said indebtedness out of said funds. It is apparent, therefore, that the oral agreement had nothing to do with the fact of Bamberger accepting the office or performing the duties of receiver, or in the handling of the assets or winding up of the business of the old company. It is claimed, however, that he paid the $70,000 into the treasury of the new company, with which it purchased the property of the old road at the receiver’s sale. Thereby these bank notes (in judgment) and condemnation bonds were paid, and thereby Bamberger caused them to be paid. Assuming, as the evidence shows, Bamberger did pay the $7,000 into the treasury of the new-road, it is fair inference from the evidence that it was paid prior to the time of •making the oral agreement, for the undisputed evidence shows that a check for $4,000 (Exhibit No. 13) given by him in payment of ten per cent, on the capital stock subscribed was drawn in favor of the new company March 17, 1896, and paid the following day by the bank upon which it was drawn. The transaction last mentioned occurred more than three [384]*384months before the note in • question was executed and delivered, and more than seven months prior to the time the , oral agreement was entered into. And, further, it most conclusively appears that the consideration of the new road paying said sum at the receiver’s sale was its purchase and receipt of the property of the old road. Hence it is apparent that the oral contract had nothing whatever to do with these matters, and can therefore not be claimed as consideration for it.
True, the evidence shows also that he issued his personal checks in payment of some of the condemnation claims, but the evidence also shows that the funds — and it is, in effect, so alleged in the answer — against which the checks were drawn were funds belonging to the Salt Lake & Ogden Railway Company. The record further tends to show that at the time this agreement is alleged to have been made the note to the National Bank of the Republic had been paid, or at least the funds were in his hands, as receiver, with which it was his legal duty to pay it. Therefore, as contended by appellant, no consideration whatever passed from Bamberger to Woodman for the cancellation and surrender of the note sued on.
“It may be stated as an elementary principle that neither is the promise to do nor the actual doing of that which the promisee is bound by law to do a sufficient consideration to support a contract in his favor.” (6 Am. and Eng. Law, 99, 750, 752; Conover v. Stillwell, 34 N. J. Law 58; Lewis v. McReary, & Wash. 294, 34 Pac. 832; Reynolds v. Nugent, 25 Ind. 328; 1 Parsons on Contracts, p. 467; Dunckel v. Dunckel, 56 Hun 25, 8 N. Y. Supp. 888; Pope v. Hays, 19 Tex. 375; Parmelee v. Thompson, 45 N. Y. 58, 6 Am. Rep. 33; Hammond on Contracts, p. 662; 9 Cyc. 347.)
In the case of Dunckel v. Dunckel, supra, one John A. Dunckel, who was indebted in an amount of over $11,000, for the payment of $7,500 of which his father, William [385]*385Dunekel, was surety, died leaving a will appointing bis wife executrix and sole legatee thereunder. Soon after the death William Dunekel promised the widow and executrix that if she would pay these debts on which he was liable, and would save him from paying the same, he would’give her a life estate in certain land which had been occupied by plaintiff and her husband for about seventeen years, but of which William Dunekel was the owner. The widow agreed to pay those debts, for which at that time it was uncertain whether the estate of the deceased would be sufficient. She subsequently paid the debts out of the funds .belonging to the estate, and delivered the notes on which William Dunekel was liable to him, and demanded the life lease of the premises which she had continued to occupy after the death of John A. Dunekel, her testator. William Dunekel refused to deliver the lease, and on being sued by the widow defended on the ground that there was no consideration for the contract, inasmuch as the debts in question had been paid out of the assets of the estate of the testator, who was primarily liable. The Supreme Court, in the course of the opinion, says:
“Finally, as an independent proposition, this plaintiff had not done anything or paid anything which gives her a claim of any sort against defendant. She could not maintain an action against defendant for any money paid, because she has paid nothing except what she was bound to pay from the moneys belonging to the estate, without regard to the agreement. He owes her nothing for services. All she has done was to discharge the duties of executrix, for which she was paid out of the estate. It was not part of the agreement that she was to act as executrix, nor did she assume that duty because of the agreement. She expected to and did accept the trust because the will of her husband so appointed. The defendant agreed with her that, if she would do her duty in the discharge of that trust, as the law itself required, he would give her the life lease. [386]*386T'bere was therefore no legal consideration for the agreement.”
Counsel for respondent put much stress upon the fact that Bamberger was the promoter of and owned practically all the stock of the corporation that purchased and succeeded to all the rights of the Great Salt Lake & Hot Springs Railway Company. The record shows that this company was organized March 17, 1896, more than three months before the execution and delivery, June 30, 1896, by Bamberger to Woodman of the note sued on, and more than seven months prior to the time the alleged agreement was entered into, which time the uncontradicted evidence conclusively shows was “about the last of October, 1896;” and it is alleged in the answer, and the court found, that the Salt Lake & Ogden Railway Company was organized to acquire title to the property owned by the Great Salt Lake & Hot Springs Railway Company. Therefore it is conclusively shown by the record itself that this alleged agreement had nothing to do with the organization of the corporation which purchased the property at the sale referred to, and that the payment of the obligations mentioned was neither directly nor indirectly the outgrowth of such agreement.
The part of the findings of the court which holds that Bam-berger paid or caused to be paid the obligations referred to is not only unsupported by the evidence, but is in fact contrary to and against the same, and hence is erroneous.
The judgment is reversed, with directions to the trial court to grant a new trial. Costs of this appeal are to be taxed against the respondent.
STRAUP, J., concurs.