
    [No. 4348.]
    McIntire v. Schiffer et al.
    1. Appellate Practice — Pleading — ’Amendment — Departure — Waiver.
    An objection to an amended complaint on the ground that it changed the cause of action, if not raised in the trial court, cannot be raised on appeal.
    2. Evidence — Admissions — Bills and Notes. •
    In an action against a wife upon a note executed by the bus-band on the ground that the wife had assumed its payment a conversation had between plaintiff and the husband in which the husband stated that he had made arrangements with his wife to deed her his land for the purpose of enabling her to borrow money with which to discharge the note was admissible in evidence, where it was shown that the conversation was communi-' cated to the wife and that she admitted that such arrangement had been made between her and her husband.
    3. Bills and Notes — Evidence — Attachment.
    In an action against a wife upon a note of her husbánd, on thé ground that she had assumed its payment, evidence that it was the intention of plaintiff to have attached the husband’s property if the wife had not assumed the note, did not affect the issues and was not prejudicial.
    4. Bills and Notes — Statute of Frauds — Assumption by Wife of Payment of Husband’s Note.
    Where a husband conveyed land to his wife under an arrangement that she should borrow money on the land and pay off his note and she promised the payee to pay the note when she should borrow the money, and she did borrow money on the land sufficient to pay the note, the transaction constituted an original contract on her part to pay the husband's note not within the statute of frauds, and without regard as to whether or not the payee accepted the wife as his debtor in lieu of the husband.
    5. Same — Action Against Husband, — Waiver.
    Where a husband conveyed land to his wife under an arrangement that she should, borrow money thereon and pay off his note, which she agreed with the payee to do, and she did borrow money sufficient to pay the note, the commencement of an action against the husband on the note was not a waiver of the right of action against the wife nor did it preclude the enforcement of the claim against the wife unless by the action against the husband she was prevented from carrying out the arrangement under which the land was conveyed to her.
    
      Appeal from the District. Court of Conejos -County.
    
    Appellees,, as plaintiffs, brought an action against appellant and Albert W. Melntire, as defendants, upon tbe promissory note of the latter, alleging in, substance as a cause of action against ap: pellant," that .at the time of the maturity of such note the defendants were the several owners of land upon which they promised plaintiffs to secure a loan and discharge such, note, and also one due plaintiffs from' appellant; that at this time plaintiffs were about to sue out an attachment against Albert W. Melntire, and levy upon the. lands and other property which he had theretofore conveyed to Mrs. Melntire; that the. latter then promised plaintiffs that if they would not institute such suit, she would assume and pay the note in. question as well as her own, in'consideration ,of which they forebore bringing any action. That in pursuance of this agreement, and for the purpose of indemnifying her. on account of her assumption to pay the note, and in order to enable her to raise funds with which, to discharge the same, she received a conveyance from Albert W.' Melntire of lands in. his name upon which she afterwards, in connection with lands belonging to’ her, secured a loan for the purpose of paying this note and her own. The case was dismissed as to Albert W. Mclntire, and thereafter an amended complaint was filed against appellant, wherein it was alleged, in addition to what was stated in the original complaint, that the plaintiffs, relying upon her promise to pay the note, accepted her as their debtor in place of the maker. To this amended complaint appellant interposed a general demurrer, which was overruled. She then answered, denying her promise to pay the note in question, and as a second defense, set up the statute of frauds in bar of any action against her. On the trial testimony was introduced to the effect that one of appellees had talked with Albert W. Mclntire about paying his note ,• that he informed witness he had made arrangements with Mrs. Mclntire to deed her the land in his name for the purpose of enabling her to borrow money on such land, as well as her own, with which to discharge his note, as, also, the one she was owing appellees. This conversation,, so the witness states, was communicated to Mrs. Mclntire, who, according to the statements' of witness, told him that such an arrangement had been made between herself and Mr. Mclntire, and that she would secure a loan and pay both notes. She denies ever having made this statement. The witness also stated that at the time of this conversation with appellant, it was his intention to attach the land of Mr. Mclntire if defendant had not agreed to pay the note. Albert W. Mclntire conveyed her the land standing in his name. After this transaction correspondence regarding the matter was had between plaintiffs and appellant. In her letters to them on the subject, she stated,, in effect, that no loan as yet had been arranged; that appellees were perfectly safe, for she would do nothing to interfere with their interests; that she was not going to get away with the land; that “we (evidently referring to Albert W. McIntire and herself) intend to take np both notes, ’ ’ and that if they would only have patience, both would be paid. She afterwards, and before this action was commenced, secured a . loan upon the lands conveyed by Albert W. McIntire and her own in excess of the amount necessary to .discharge both notes. It appears from the testimony that prior to the bringing of this action, plaintiffs had brought suit upon the note first, against the maker, which was afterwards dismissed on their own motion ; next, against him and Mrs.' McIntire, in which it was alleged as against her that she had agreed to become jointly liable to them on the note. This action was also dismissed. The trial was to the court, and the judge, after reviewing the testimony above noticed, appears to have found as a fact, although not expressly stated, that Albert W. McIntire had conveyed to Mrs. McIntire the land in his name for the purpose of enabling her to borrow money with which to discharge his note, and concluded, that this arrangement constituted an original contract not within the statute of frauds. From a. judgment in favor of plaintiffs, the defendant appeals. Her counsel contend that the trial court erred (1) in permitting a new complaint to he filed which changed the cause of action; (2) in admitting incompetent and prejudicial evidence, and (3) in rendering judgment for the plaintiffs.
    Mr. Z. T. Brown and Messrs. Patterson, Richardson & Hawkins, for appellant.
    Mr. W. E. Cox and Messrs. Goudy & Twitchell, for appellees.
   Mr. Justice Gabbert

delivered the opinion of the court.

It is not necessary to determine whether or not the amended complaint changed thé cause of action. Appellant did not raise that question in the- trial court. She answered, ánd went to trial without a suggestion or objection that a new cause of action had been introduced by the' amended complaint; consequently, the point now made cannot'be considered on appeal.—King v. Rea, 13 Colo. 69.

The alleged error of the trial court in admitting incompetent testimony is based upon the reception of what Albert W. Mclntire stated to-one of the appellees relative to the arrangement he had made with Mrs. Mclntire, to convey her his property. As an independent conversation this testimony may have been incompetent, but where, as in this instance, it was communicated to appellant, as claimed by the witness, and she stated that such- an arrangement had been effected between herself and' husband, and it formed the basis of an arrangement between the plaintiffs and herself to the effect that she would carry out the agreement and pay the note from money to be borrowed on the lands conyeyed to her, it was competent for tlie purpose of establishing the mutual arrangement claimed by plaintiffs to have been entered into between the parties to this'action and Albert W. Mclntire. It is also claimed that the court erred in allowing the witness to testify that at the time of this conversation between himself and -Mrs. Mclntire, it was the intention of plaintiffs to attach the property of Albert W. Mclntire, if appellant had not assured him of the arrangement between herself and husband, and promised to assume and pay the note. This may have been incompetent, but clearly it could not affect the issues between the parties, and therefore was not prejudicial.

The important questions are those argued by counsel for appellant in support of their contention that the court erred in rendering judgment for plaintiffs. They contend that the evidence, wholly fails to establish that plaintiffs accepted appellant as their debtor in lieu of the maker of the note, and that her promise, if any, to discharge the indebtedness thereby represented was within the statute of frauds. The principle of novation is not necessarily involved, and the real question is, whether or not the evidence establishes an agreement between the plaintiffs, appellant and the maker of the note, which rendered appellant liable for the indebtedness represented by such note. If this agreement embraced nothing more on her part than a mere verbal promise to pay that indebtedness, then it is within the statute of frauds, and cannot be enforced.. On the other hand, if the real substance, of her agreement was to perform an obligation growing out of the transfer of the lands to her, then her promise to perform that obligation was her own, and therefore not within the statute of frauds, though in form it may have been an agreement to discharge that indebtedness, and the result of its performance is to discharge it. — 8 Enc. Law, 1st ed. 678. The court found, as' a mixed question of law and fact, that the agreement between plaintiffs and defendant constituted an original contract, and therefore was not within the statute of frauds. The evi-. deuce is certainly sufficient to sustain this conclusion. There was testimony to the effect that the maker of the note had agreed with appellant to transfer lands in his name to her, upon which she was to borrow money and discharge his note due the plaintiffs, and that the latter had accepted this arrangement. There is also testimony to the effect that she agreed with the plaintiffs, when such transfer was made, to borrow money, to pay them-this note. Her letters to them on the subject indicate that she recognized she was under obligations to them- with respect to this note on account of the conveyance of'the land from Albert W. Mclntire, for she informed them that she was not going to get away with the land, or do anything which would interfere-with their interests, and that a loan was being negotiated with which to take up both notes. Her letters to this effect were written after she had received a conveyance of the land from-Albert W. Mclntire. She has negotiated a loan upon these lands in connection with her own which was more than sufficient to discharge the notes against herself and Albert W. Mclntire, which were held by the plaintiffs. The agreement between the parties may not have discharged the maker of the note, but that is immaterial. By accepting a conveyance • of the land, and negotiating a loan thereon under an agreement with the plaintiffs and the maker of the note that she would discharge the note of the latter held by the former out of the money thus realized, she agreed to perform an obligation of her own, resulting from an original transaction to which she was a party. While this agreement was, in effect, a promise to pay the debt of another, and the result of its performance will have this effect, it was nothing more than a promise to- perform an obligation in consideration of which the lands were conveyed to her by Albert W. Mclntire. This, as the trial court held, constituted an original contract upon her part not within the statute of frauds.—Green v. Richardson, 4 Colo. 584; Feldman v. McGuire, 55 Pac. 872; Gilmore v. Skookum Box Factory, 56 Pac. 934; Shufeldt v. Smith, 40 S. W. 887; Hilton v. Densmore, 21 Maine 410; Calumet Paper Co. v. Stotts Inv. Co., 64 N. Y. 782; Rothermel v. B. & Z. Coal Co., 79 Ill. App. 667; First Nat’l Bank v. Chalmers, 144 N. Y. 432.

The other questions argued on behalf of appellant are directed principally to those matters which might affect the credibility of the witness on behalf of the plaintiffs. We do not think it necessary to go into this question, because these were matters which it was the peculiar province of the trial judge to determine. They might be of special importance if it were true- that plaintiffs could not recover except upon the theory that they had accepted appellánt as their debtor in lieu of the maker of the note, but, as we have said, and as some of the authorities above cited hold, that question is not material, because, under the facts as found by the court,and as established by the record, appellant made the debt her own, irrespective of the liability of the principal debtor, and became primarily liable for its discharge. In such circumstances, the commencement of an action against Albert W. Mclntire was not á waiver of the right to hold her responsible upon her promise. Neither did the suit against Albert W. Mclntire preclude plaintiffs from enforcing their claim against appellant, in the absence of a showing that by suqb. action she was prevented from carrying out the arrangement under which the lands had been conveyed to her.

The judgment of the district eourt is affirmed.

Affirmed.  