#### N. B. Trulock *et al*v. J. R. Blair.

(Filed June 15, 1899.)

Statute op *Frauds*— Promise *to Pay Debt of Another.*Wherever the-leading purpose of a person who agrees to pay the debt of another is to gain some advantage or promote some interest 'or purpose of his own, and not to become a mere guarantor or surety of another’s debt, and the promise is made upon sufficient consideration, it will be valid, although not in writing, and the contract is-not within the statute of frauds.

(Syllabus by the Court.)

*Error from the District Court of Canadian County; before John C. Tarsney, District Judge.*

TP. *H. Criley,*for plaintiff in error.

*T. G. Chambers,*for defendant in error.

Action by N. B. Trulock and others, as the El Reno. Ice & Coal company, against J. R. Blair. From an order sustaining a demurrer to- plaintiff’s evidence they bring, error.

Reversed.

*346STATEMENT OF THE CASE.

This was an' action for the recovery of an amount due ■for a quantity of ice shipped by the plaintiffs to .ome McCormick, and, as was alleged by the plaintiff®, upon the order and credit of the defendant, Blair. The ■cause comes here on error from an order of the court sustaining a demurrer to the plaintiffs’ evidence. The plaintiffs were manufacturers of ice at El Reno. The defendant lived in Oklahoma City, and was a wholesale dealer in beer at that place and at Shawnee. He had in his employment at Shawnee a man named McCormick. In July, 1895, the defendant, Blair, requested the plaintiffs to ship their ice to McCormick, saying at the time: “I will see that the financial part is all right; I will see that the accounts are paid.” One car of ice was shipped to McCormick under this arrangement, and paid for, •except the sum of $10. On July 29, 1895, the defendant wired to the plaintiffs to “send ear load of ice to McCormick at once; about out. J. R. Blair;” and by another telegram, on the same day, “Will you load car of ice to .McCormick to-day?” On August 6th the defendant ■wrote to the plaintiffs as follows:

“Oklahoma City, August 6, 1895.

•“El Reno Ice & Coal Co., El Reno, O. T. — Gents :

“Please let me know when you will be able to ship •Shawnee ice. It is very important that I should know •exactly, as I have a hard time to get ice here. I have kept Mac in ice so far, and he still holds the trade, but '•the Anheuser folks are doing everything to get a holt before you can get ice in. Ship as soon- as you possibly •can, and we will have that trade. Please answer by return mail, or wire me, at my expense, a® so'on as you get this.

J. R. Blair.”

*347The plaintiffs failed to ship the ice, and on August .10th Blair visited the plaintiffs at their plant in El Reno, >and in conversation with Bradford, a member of the El Reno Ice company, said to him, “I do not understand why you do not send the ice where I ordered ilt.” Bradford replied that it took several days to produce ice after a breakdown, which had occurred in the plant. Bll'air then said, “I want you to send him (meaning McCormick) the very first ice you turn out, — the first order you fill;” and further said, “Do- you hesitate on account that you think you may not get your money?” Bradford replied that they did not hestitate, because they looked to Mm (Blair) for their money, and Blair then said, “You ship McCormick the first car of ice you turn out and I will see that it is paid for;” and, further, that “if tMs car is not paid for, and another car is ordered, don’t hie afraid to ship that; send it right on; .and I will see that you are paid the money.” Afterwards, in September, two cars of ice shipped to McCormick, under this direction of Blair, remained unpaid for; the ice company refused to ship any further ice to the direction of McCormick; and, in a conversation with Blair, Bradford said to Mm that the plaintiff would continue to sMp the ice if the hills of lading in the future should read to Mm (J. R. Blair.) Blair said that he would “go to Shawnee, and have those two. cars, transferred to my account, and I will send you a check to-morrow for them;” and Bradford said, “I will have the account in the books changed to J. R. Blair.” Blair replied, “No-; leave the account on there to W. H. McCormick, and I will send you a check for the amount.”

Thie evidence showed that McCormick was engaged in the business of selling beer in Shawnee for J. R. Blair, *348and that the iee was used to> cool the beer,the property of Blair. It -appeared from the testimony of R. S. Trulock,. secretary and treasurer of the ice company, that the conversation had -occurred in El Reno as stated- by Bradford) and that Blair had reitera,ted that, if McCormick ordered any more cars, he wanted -the plaintiffs1 to ship them, and “I will see that you get your money;” that his beer was spoiling in Shawnee, and that it was necessary for him to hav-e the iee over there. Trulock said to Mm that they considered him (Blair) perfectly good, and that they did not know McC-ormick. Bradford also-testified that the ic-e had been -shipped to- McCormick “just from th-e conversation I had with Mr. Blair -on the-train going down to Shawnee,” and that “I gave credit to Mr. Blair because I didn’t know McCormick at all,, or -anything about his financial condition,” and thait he-would not have shipped t-h-e iee to McOo-rmick without the arrangement made with Blair. It was again testified by Bradford tha-t when Blair came ov-er to- El Remain August, and saw th-e witness a,t the ice plant, -he-(Bradford) told Mm (Blair) th-at they l-oofced to Mm for the payment of the account, and that Bl-air replied that it was “all right, and the account would be paid,” and that, “if the car wasn’t pa-id for when another was ordered, to ship the next ear of ice just the same.” The-ice sued- for was -thus -shipped to McCormick, and an account opened in Ms name, at the request of Blair, and upon his express promise to pay for all the iee that wa-s ordered by McCormick. At th-e close of the season -for shipping ice-for 1895, $114.80 remained unpaid upon the account. In -the winter, and when the ice factory had *349dosed down for the season, and upon 'an occasion when ■the account was presented to Blair and payment demanded, “he just said that he would not pay it. He said that he would have been a fool to guarantee McCormick’s account, and that McCormick had quit him now and left his employ, and that he could not get even with Mm, and that he was a foul to say that he would assist to pa.y it in any way.”

The case was brought in the probate court, and judgment rendered fur the plaintiff for the amount sued for. The defendant appealed to the district court, where the case was heard, and the evidence herein oitedi was produced. The court sustained a demurrer to the evidence, which is assigned as error.

Opinion of the court by

McAtee, J.:

For the, purposes- of the demurrer the truthfulness of all this testimony is conceded1. We presume that the judgment below was rendered upon the supposition that, inasmuch as the goods were -charged on the books of the company to McCormick, the debt was the debt of McCormick, and the promises made by Blair, -and his liability, if any, were collateral, and to pay -the debt of another, and therefore not binding. But the fact that the goods were charged on the books of the" company to McCormick was only evidence tending to .show that -the credit was given to McCormick, and was by no means conclusive. It was a fact open to explanation, and to be considered in connection with all the other testimoy offered by the plaintiffs, in order to determine to whom the credit was given. The ice was ordered by Blair upon the express promise that he would pay for it. McCormick was his employe in- the *350business o'f selling beer, and the ice was ordered for Hie purpose otf preserving the beer from spoiling, and the beer was Blair’s. The credit was given upon Blair’s account atone, as shown by this testimony, and was entered to the account of McCormick, in order to oblige Blair, and upon his own request. The plaintiffs had no knowledge otf McCormick, did not know his financial condition, and gave no credit to him. The evidence shows that the credit was extended exclusively to Blair. The fact that the account was entered in the name of McCormick did not necessarily imply that any credit was given to him at all. ■ Under the evidence in this case, we think it may be properly said that the only presumption which arises from that fact was that, imagfmuch as Blair requested that the account should be kept in- the name otf McCormick, he made the request for the purpose otf keeping his own account with McCormick clear. Upon this state of facts, the judgment should have been for the plaintiffs. The conclusion upon this evidence must be that the contract was an original contract with Blair, and that the promises made were not collateral to any agreement of the plaintiff company with McCormick. *(Calahan v. Ward,*45 Kan. 545, 26 Pac. 53; *Burkchalter v. Farmer,*5 Kan. 289; *Amort v. Christofferson*[Minn.] 59 N. W. 304; *Maurin v. Fogelberg*[Minn.] 32 N. W. 858.)

The object otf the order for the ice made by Blair; the purpose for which it was used, and for which he wanted it and for which he ordered it, which was for his own benefit; the persistence with which he ordered it by telegram; by letter, and by visits to El Remo; and the application of the ice to the preservation of *351his stock of beer,- — -clearly manifest that the Sole purpose of Blair was his own private-benefit, not the benefit of McCormick; and wherever the leald'in-g purpose of á person, who agrees to pay the debt of another is to- gain some advantage or promote some-interest'or purpose of hi® own, and not to become a mere guarantor or surety for another’s debt, and the promise is made upon a sufficient consideration, it will be valid,, although not in writing, and the -contract is not within the 'statute of frauds. *(Fitzgerald v. Morrissey,*[Neb.] 15 N. W. 234; *Clopper v. Poland,*12 Neb. 69, 10 N. W. 538; *Nelson v. Boynton,*3 Metc. [Mass.] 396.)

The judgment of -the court below will be reversed, and. ■a new trial awarded to the plaintiffs in error.

All of the Justices concurring.