Simons Brick Co. v. Wiglesworth

[391]

OLNEY, J.

This is an appeal by the defendant from a judgment against him upon his alleged contract that if the plaintiff would employ a certain company known as the Interstate Vaccine Company to vaccinate the plaintiff’s hogs with anti-cholera serum, the defendant would personally warrant or guarantee that such vaccination would render the hogs immune from cholera, and he would pay for any hog vaccinated which subsequently died of that disease. The trial court found that a contract of the character stated was made; that the plaintiff in reliance upon it employed the Interstate Vaccine Company to vaccinate its hogs; that its hogs were so vaccinated; that a number thereafter died of cholera, and that the net loss to the plaintiff by the death of the hogs was $5,637.20, for which judgment was given the plaintiff. There are but two questions presented by the appeal: First, is the finding that there was a contract supported by the evidence? and, second, was the promise of the defendant upon which the claim of contract is based, and which admittedly was oral only, one which had to be in writing under the statute of frauds?

As to the first question, the sufficiency of the evidence to sustain the finding mentioned, there was direct evidence as to the making of a promise by the defendant. It also appears clearly that the promise when made was intended to be contractual in character; that is, was intended as the definite assumption of an obligation by the defendant in case it were accepted by the plaintiff. According to the evidence, the defendant, in the spring of 1916, called on the president of the plaintiff, stated that he was the president and principal stockholder of the Interstate Vaccine Company, endeavored to persuade the president of the plaintiff to have its hogs vaccinated by that company, and in that connection stated that if his company were employed to do this, he personally would guarantee the immunity of the hogs from cholera for the balance of their natural lives, and would pay the value of any that might subsequently die of cholera. , If this proposal had been accepted then and there by the plaintiff by the employment of the Vaccine Company, there could be no doubt as to the existence of the contract or as to the sufficiency of the evidence to sustain the finding that there was a contract. The only doubt in the matter arises from the fact that the Vaccine Company