Davis v. Patrick
141 U.S. 479 (1891)

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U.S. Supreme Court

Davis v. Patrick, 141 U.S. 479 (1891)

Davis v. Patrick

No. 984

Argued October 22-23, 1891

Decided November 9, 1891

141 U.S. 479

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF NEBRASKA

Syllabus

In determining whether an alleged promise is or is not a promise to answer for the debt of another, the following rules may be applied: (1) if the promisor is a stranger to the transaction, without interest in it, the obligations of the statute are to be strictly upheld, (2) but if he has a personal, immediate and pecuniary interest in a transaction in which a third party is the original obligor, the courts will give effect to the promise.

The real character of a promise does not depend altogether upon form of expression, but largely upon the situation of the parties, and upon whether they understood it to be a collateral or direct promise.

When, in an action to recover on a contract, testimony is admitted without objection showing the alleged contract to have been made, but on a day different from that averred in the declaration, and the court directs a verdict for the defendant without amendment of the declaration, such ruling is not erroneous by reason of the variation.

The case was stated by the Court as follows:

This case was commenced on the 24th day of November, 1880, by the filing of a petition in the District Court of Knox county, Nebraska. Subsequently it was removed to the circuit court of the United States, and at the May term, 1883,

Page 141 U. S. 480

of that court, a judgment was rendered in favor of the plaintiff. That judgment was reversed by this Court at its October term, 1886. Davis v. Patrick,122 U. S. 138. A second trial, in January, 1890, resulted in another verdict and judgment for the plaintiff, and again the defendant alleges error. The petition counts on two causes of action. No question is made by counsel for plaintiff in error with respect to the first count or the rulings thereon, the only error alleged being in reference to the second count. That count is for the transportation of silver ore from the Flagstaff mine, in Utah territory, to furnaces at Sandy, in the same territory. In the first trial, it was claimed that Davis, the defendant, was the real owner of the Flagstaff mine, and therefore primarily responsible for all debts contracted in its working. The relations between Davis and the Flagstaff Mining Company were disclosed by a written agreement, of date December 16, 1873. By that agreement, it appeared that Davis, on June 12, 1873, had advanced to the company

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