MULVANY v. GROSS.

27 P. 878

1 Colo.App. 112

MULVANY
v.
GROSS.

Court of Appeals of Colorado

October 12, 1891

Appeal
from district court, Chaffee county; JOHN CAMPBELL, Judge.

Gregory
Gross sued Peter Mulvany for $600. Judgment for plaintiff.
Defendant appeals. Affirmed.

G.K.
Hartenstein and J.B. McCoy, for appellant.

BISSELL,
J.

In May,
1888, Robert Holland and Henry Newby were indebted to the
appellee, Gross, to the extent of $600. On the 16th of that
month, together [1 Colo.App. 113] with Mrs. Newby, they
executed a promissory note to the order of Mr. Gross,
promising to pay that sum, with interest, on or before the
15th of October of the same year. Concurrently with the
making of the note, the parties executed a chattel mortgage
upon a crop of oats then growing upon certain lands in
Chaffee county, which belonged to Newby, but were being
farmed by Mr. Holland. The mortgage was put upon record, and
the note remained unpaid at the time of the subsequent
transactions. Some time in the fall of the year, and while
they were in stack, Holland and Newby jointly executed a
contract of sale of the oats to the appellant, Peter Mulvany.
The contract substantially provided for the sale of the
entire crop, which it was supposed would amount to about four
or five thousand bushels. According to this agreement,
Mulvany was to pay a certain price for the oats, in the
following manner: $600 in cash; $600, with interest, on a
note described as the Witcher and Gross note; $425 on a note
to Peter Mulvany, and what might be due him on the account
current; and the remainder, if any, to sundry parties named.
The Witcher and Gross note was first mentioned in the
contract, but the instrument contained no definite provision
that it should be first paid out of the purchase price of the
grain. The Gross note was the one referred to in the bill of
sale as the Witcher and Gross paper. After the execution of
this agreement, but before the delivery of the oats, Gross
had an interview with Mulvany concerning the payment of his
note, and the liquidation of the mortgage debt. It does not
appear that the agreement was referred to, but Mulvany said
that he was to handle the crop, and he agreed to pay
Gross' note out of the proceeds. Subsequently the crop
was threshed and delivered. The price of the oats was not
distributed according to the evident understanding and
arrangement of the parties, not according to the apparent
terms of the instrument, but $600 was paid in cash at the
commencement of the delivery, $100 thereafter, [1 Colo.App.
114] and on the final settlement Holland and Newby's note
of $425 was surrendered to them, some of Mulvany's
accounts contracted during the delivery of the grain were
charged off, and the balance was
[27 P. 879.]
paid by a check, which was turned over to Mr. Gross, and
credited upon the note. The only controversy between the
parties is as to what obligation Mulvany incurred with
reference to the Gross note. It is contended by counsel for
the appellant that none resulted from his agreement to pay
that paper. The contract is said to be within the statute of
frauds, and therefore void. Such an agreement, however, has
never been adjudged to be within the purview of these
statutes. An agreement by a debtor to pay his creditor's
obligation to a third party has never been regarded as a
collateral promise, but wherever it is entered into upon a
sufficient consideration, and is accepted by the party to
whom the money is to be paid, it has always been deemed an
original promise, and enforceable by the party who is
entitled to its advantages. Thatcher v. Rockwell, 4 Colo.
375; Brown, St. Frauds, chapter on "Guaranties."
There was an ample consideration for Mulvany's agreement.
Part of the purchase price of the oats was paid at the time
the contract was made, and the oats themselves were
subsequently delivered under the bill of sale. The subsequent
performance would afford an ample consideration, and the
agreement itself might be referred to for the purpose of
determining what the convention was, although he never signed
it. Cary v. McIntyre, 7 Colo. 173, 2 P. 916.

The
note and mortgage to Gross were clearly competent testimony,
and the objections made to their introduction were untenable.
These papers furnished strong corroborative testimony of the
truth of Gross' narration of the occurrence between
himself and Mulvany. Mulvany contended that he received the
oats without knowledge of Gross' claim, and he sought to
avoid the force and effect of his own agreement, and the
conversation which he had with [1 Colo.App. 115] Gross, by
stating that his only agreement was to pay any balance that
might be left after paying all the other obligations named in
the bill, and that the order of payment, as expressed, was
purely an accidental one. The chattel mortgage which was on
record in the county covering this identical crop of oats
strongly tended to support the plaintiff's contention
that he assented to the delivery of the oats to Mulvany only
on Mulvany's promise to pay him the amount of the Holland
and Newby obligation. It is hardly probable that a creditor
holding ample security for the payment of his debt would
consent to the sale of the chattels which were his sole
security without some promise, which he deemed both equally
binding and safe. The identity of the note and the error in
description could only be shown by the production of the
paper. Clearly, under all the circumstances, the objections
to the introduction of these two instruments were not well
taken. The contention that the verdict of the jury is
unsupported by the testimony cannot prevail in this court.
The case was tried and submitted to the jury under
instructions which are not complained of. There is evidence
enough in the case to support the verdict, and there is
nothing to show that the jury were influenced by passion or
prejudice. Under these circumstances, their verdict upon the
facts cannot be disturbed. Kinney v. Wood, 10 Colo. 270, 15
P. 402; Green v. Taney, 7 Colo. 278, 3 P. 423. It is
impossible to discover any error in the record that would
warrant a reversal of the case, and the judgment of the court
below is affirmed.