#### L. H. Pratt, Appellee, v. Fishwild *&*Williams *et al.,*Defendants, C. F. Kimball, Executor, Appellant.

Estates of Decedents: claims: liability of executor: juris-1 diction. Where an action is instituted by the payee of certain notes against the makers and an executor, who claims his testator was merely a surety on the notes, and the answer of the makers sets up a joint liability, a-judgment determining the liability "of the makers and the executor will not be disturbed on the ground that no formal cross-petition was filed and the court was therefore without jurisdiction to determine their several liability, where it appears that no substantial rights of the adverse party were affected.

Principal and Surety: determination of liability: consideration. *2*In an action on certain notes against a firm and an executor, who claimed that his testate signed the same as surety, the evidence is considered and held to show sufficient consideration to warrant submitting to the jury the question of testate’s liability on an agreement to pay one-half the debts of the firm.

Statute of Frauds: agreement to pay the debt of another.' 3 Where the object of an agreement to pay the debt of another is to gain a personal advantage, it is not within the statute of frauds, although the effect is to extinguish the liability of the other.

Claim Against an Estate; time of filing. Where a claim is 4 filed against an estate and parties jointly liable for the payment are claiming that the estate should pay the whole claim and that their liability in no event exceeds one-half the amount, the same is not one required to be filed within twelve months.

*Appeal from, Jones District Court.*— How. H. M. Remley, Judge.

Friday, October 30, 1903.

ActioN upon two promissory notes — one executed May 30, 1896, by Fishwild & Williams, alleged to be composed of R. Fishwild and Roy Williams, and by R. S. Williams, *643surety, to L. H. Fratt, for the sum of $1,500, due in one year, with interest at seven per cent.; and one executed May 10, 1898, by.Fishwild *&*Williams and E. S. Williams to L. H. Pratt, for the sum of $1,500, due in one year, with interest at eight per cent. It is conceded that the second note mentioned was given as a renewal of the first note. Such first note was not wholly paid thereby, however, there being interest due and unpaid. Before the commencement of this action, R. S. Williams died testate, and the appellant C. F. Kimball was duly appointed executor. The said notes were filed with said executor as a' claim against the "estate of said E. S. Williams. Thereafter said executor, assuming that the liability of his testator, on said note was that of a surety only, served notice upon this plaintiff, as provided for in section 3064 of the Code, requiring her to bring suit on said notes as against the principal makers, or allow him (said executor) to do so. Plaintiff thereupon gave said executor authority to bring suit in her name, and this action was begun accordingly, the said O. F. Kimball, as an- attorney, appearing on behalf of plaintiff. The defendant firm of Fishwild & Williams, and E. Fishwild,. one of the members thereof, answered, alleging that said E. S. Williams did not occupy the relation of a surety on the said note last executed, but that at the time said note was executed and delivered he, the said E. S. Williams, was a silent or dormant partner in the firm of Fishwild *&*Williams, owning a one-half interest in said firm. For a further defense it is said that the said E. S. Williams, being responsible on a large " amount of negotiable paper owed by said firm, and the -defendant Fishwild for all debts and deficiencies owing thereto by said Roy Williams, his son, and the said Roy being largely overdrawn in his account, the said E. S. Williams, with the consent of said firm, took and received the one-half interest in the business and property of the firm, and sold the same to one Shaffer for the sum of *644$6,000, which sum was paid to him, said E. S. Williams, in hand; that at the time thereof it was agreed by said E. S. Williams that in consideration that said Fishwild would accept said Shaffer as a partner, and waive his right to have the affairs of the partnership wound up, he, the said E. S. Williams, would, upon making such sale to Shaffer, pay one-half of all the debts then owing by said firm, including the notes here in suit, and release the said Fishwild from liability as to such one-half. It is the prayer of the answer that the judgment rendered on said notes be a joint judgment as against said firm and said K. S. Williams, and that said firm and the said Fishwild be held liable for one-half only of such judgment, and the defendant E. S. Williams or his estate be held for the other half. On the day said answer was filed the plaintiff, appearing by W. I. Chamberlain as her attorney, and. the defendant firm, jointly moved the court to compel 0. F. Kimball, executor, to come in as a party defendant, as. provided for by section 3066 of the Oode, and on the same-day said executor did appear as such, and filed answer-admitting the execution of the notes, and that E. S. Williams signed the same as surety; averring want of knowledge as to whether the notes are unpaid; and praying-judgment establishing his relation to said notes as that of a surety only. Thereafter there was filed in the name of plaintiff a reply denying that E. S. Williams was a partner in said firm; denying the alleged agreement on the; part of said E. S. Williams to pay debts of said firm;; alleging that such agreement, if made, was not evidenced, by writing as by law required, and was without consideration, and void.; that no claim of the character now made-by defendants was filed against the estate of said E. S. Williams within one year, and the same is therefore-barred. There was a trial to jury, resulting in a verdict-finding for plaintiff as against all defendants, and finding-the estate of K. S. Williams to be liable for one-half the-*645debt, and said firm and E. Fishwild and Eoy Williams, members thereof, liable for the other half of the debt. Judgment was entered against all defendants except C. F. Kimball, executor, for the amount of the verdict, and the amount thereof was allowed as a claim against said estate, “and said estate is liable upon said claim as principal for one-half of said amount and as surety for the other half; that the other defendants are liable on said judgment for one half the amount as principal, and as surety for the other half of the same.” From such judgment the defendant O. F. Kimball, executor, appeals.—

*Affirmed.*

*James E. Remley*and *(J. F. Kimball*for appellant.

*Miller c&*Chamberlain, *W. W. Chamberlain*and • *Wilds*d? *Bander*for appellees.

Bishop, O. J.

As we gather from the record, the trial was conducted on behalf of plaintiff and 0. F. Kimball, executor, by C. F. Kimball as attorney. On behalf of plaintiff there was introduced in evidence the notes in suit,' and the testimony of 0. F. Kimball to the effect that Eoy Williams had admitted to him that the defendant firm was composed of E. Fishwild and Eoy Williams, and that E. S. Williams had signed the notes in suit as surety. Plaintiff then rested, whereupon a motion was made on her behalf and on behalf of the defendant Kimball, executor, for judgment on the pleadings against Fishwild *&*Williams and E. Fishwild and Eoy Williams as principals, and the defendant Kimball, executor, as surety. This motion was overruled. A motion was made after verdict in arrest of judgment and for judgment *non obstante*veredicto, based upon the same grounds stated above, among others, and this was overruled.

*646r claims: exe”utor:°f jurisdiction.*645The contention of counsel for - appellant, if we rightly interpret, is that, in the absence of a cross-petition as be*646tween the defendant firm and the defendant execut jr, the court had .no jurisdiction to determine any question concerning the respective liabilities 0f several defendants as between themselves. With this, we are not disposed to agree in all strictness. It is.true that no formal cross-petition was filed. But the action was commenced at the instigation of the executor, and.Mrs.' Pratt was but the plaintiff nominally. No one had disputed her rights, and it was not expected that any one would be found to dispute them. She had filed her claim with the executor, and, we may assume, was resting in the assurance that such claim would be paid-in full out of the estate. The party having the prime interest in the institution of the suit was the executor by whom iu fact it was prosecuted. Now, it is manifest that the executor believed that his testator was a surety only, and the suit was accordingly brought against the firm of Fishwild & Williams and the individual partners in said firm only. The answer of the defendants, however, disclosed the contention on their part that B. S. Williams was not a mere surety, but jointly liable on the notes in suit. The defendant firm thereupon joined with the plaintiff in demanding that the executor come in as a party and plead, which he did, making the specific allegation that the liability of his testator was that of a surety only, and praying judgment that his relation as such surety be established. It is to be noted, also, that in the reply filed in the name of the plaintiff the'allegations all have relation -to matters in which the executor alone was interested. The plaintiff was not in the least concerned therein. The executor was within the jurisdiction of the court, and by his pleading made the direct issue as to the character of his liabiilty, and this was • undoubtedly inspired by the pleading on the part of the defendant firm. To all intents and purposes, therefore, the answer of the firm was a cross-bill, although not so entitled, and the answer of the1 *647executor was an answer thereto. Ihe cause was certainly: tried by the court upon that theory, and we cannot dis- ■ cover-that the executor was prejudiced thereby. He went to trial without objection as to the issues, save as made in. the joint motion for judgment upon the pleadings, and he made no specific objection on that ground untilmotion for new trial after verdict was made. Although he joined-with the plaintiff in making general objections to the evidence offered by defendants to sustain the allegations of their answer, yet he introduced such evidence in opposition thereto as he saw fit, and there is no suggestion that he was prevented from producing all the evidence, to be-had bearing upon the subject. So, too, he treated the reply as if filed by him, and by proper objections raised the questions made thereby, and secured a ruling of the court thereon. It was certainly desirable that all the issues between the parties should be tried in one action, and as we. think the exebutor was given the opportunity to and did present his whole case, we conclude that there should be no interference with the judgment by reason of the informality complained of. It is a provision óf the Code (section 3601) that “the court, in every stage of an action must disregard any error or defect in the proceeding, which does not affect the substantial rights of the adverse party; and no judgment may be recovered or affected by reason of such error or defect.” Our conclusion also finds' support, in principle at least, in the following authorities: *Cotes & Patchin v.*Davenport, 9 Iowa, 238; *Doniphan v. Street,*17 Iowa, 321; *Bank v.*Barber, 56 Iowa, 564; *Hoyt v. Hoyt,*68 Iowa, 706; *White v. Bryam,*96 Iowa, 166; *Warren v.*Chandler, 98 Iowa, 244.

*6482 principal deterSuíaIty^coasiler-" ation'*647II. By its instructions the court told the jury that there was no sufficient evidence to establish the relation-ship of R. S. Williams as a partner in the firm of Fishwild. *&*Williams. The sole question submitted was whether or not R. S. Williams had agreed to become liable for and *648feo pay one-balf of the indebtedness of said firm. Counsel for appellant contends that it was error to submit such question, for that it had not been shown that such agreement, if made, was based upon any sufficient consideration. We think otherwise. It is made to appear that R. S. Williams was instrumental in securing the introduction of his son, Roy, into the firm. He became then obligated in connection therewith on his account, and thereafter and at the time of the alleged agreement he was largely involved as a surety for his son and for the firm. The half interest in the property and business was sold by the father, the son joining in the conveyance; and the whole of the proceeds were taken possession of by the former, and disposed of ¡by him as he saw fit. Moreover, there is evidence upon which the jury might find that, to effect a sale to the pur.chaser, and to secure his introduction into the business, .and on the faith of his agreement to pay, he procured the .consent of Fishwild to accept of such purchaser as a partner, and to forego the accounting, etc., incident to a dissolution of partnership. We cannot doubt but that out of this a sufficient consideration arose.

3. statute of :mSnttoapaye ,the debt of -.another. Ill: It is a further contention that such agreement, if made, was within the statute of frauds. As we have stated in the next preceding division of this opinion, there was evidence from which the jury might draw the conclusion that an agreement to pay was . made by R. S. Williams, as alleged, and that :such agreement was predicated upon the consideration ;alleged. Accepting this as the state of the record, we have no case coming within the statute of frauds. By taking the property and appropriating the proceeds thereof under the circumstances alleged, and under the agreement as alleged, R. S. Williams made the firm debts to the extent of oneffialf thereof his own debts. He then became primarily liable. “Whenever the main purpose of the person *649promising is not to answer f'o.r the debt of another, but-to subserve some object of his own, the promise is not within the statute of frauds, although in form it may have the ■effect of extinguishing the liability of another.” *Johnson v.*Knapp, 36 Iowa, 616. See, also, *Chamberlin v.*Ingalls, 38 Iowa, 300; *Blair Town Lot & Land Co. v.*Walker, 39 Iowa, 406; *Emerson v.*Slater, 22 How. 28 (16 L. Ed. 330); *Davis v.*Patrick, 114 U. S. 479 (12 Sup. Ct. Rep. 58, 35 L. Ed. 826).

*A*rr.a-nvr efta'tefthne of fiimg.*IV.*There is. no merit in the contention that the ■claim should not have been allowed against the estate, for that the same was not filed and noticed for hearing within twelve months from notice of appointment of the executor. We have, no data from which we can determine the precise facts, but, in our view, such would be immaterial. Certain it is that the claim was filed against the estate, ¡and the liability to the plaintiff on such claim as a whole is not in dispute. \ The defendants are not in the attitude ■of making any claim against the estate. In effect, they are simply insisting that the estate shall pay the whole of plaintiff’s debt, and that their liability to the estate shall not exceed one-half the amount so paid. Such is not a ■claim within the meaning of the statute requiring claims to be filed and proven.

V. We have inquired into each of the other errors ■assigned, and find nothing of sufficient merit to warrant us in disturbing the judgment. We think the case was fairly submitted to the jury by the instructions, and no ■question is made as to tho form of the verdict or judgment. —Ae’btj&mjsd.