
    Estabrook v. Gebhart.
    1. In order to take advantage of error in the ruling of the court admitting testimony, the bill of exceptions thereto must be signed and filed as part of the record at the trial term.
    
      2. If, however, a motion for a new trial is overruled, and a bill of exceptions taken embodying all the testimony and charge of the court, the whole record will be examined to ascertain if the verdict is sustained by the law and the evidence, although the bill was taken at the term when the motion for a new trial was overruled, this being subsequent to the trial term.
    •3. E. contracts with S. to build a house, and 8. contracts with G. to furnish labor and materials. G. refuses to furnish such labor and materials, except upon a promise made to him by E. that ,he himself will pay the bill out of funds coming to S. Held: To be a contract not within the statute of frauds so as to make a writing necessary.
    
      4. The work being done, and it being agreed by ail that B. should pay G.r who was to give up his claim against S. and look to E. alone for payment; this is such a contract as need not be in writing under the statute.
    Error to the Superior Court of Montgomery county.
    In this case there are three bills of exceptions, the first two of which relate to errors occurring at the trial, with regard to the admission of testimony. The trial was at the March term, 1874, and the bills of exceptions were not filed until May, 1874, after the trial term had closed.
    The third bill of exceptions, though taken at a subsequent term, was upon the overruling of a motion for a new trial. This bill sets out all the evidence together with the charge of the court.
    Erom this bill, it appears that Estabrook, who was defendant below, made a contract with one Showalter to build a house in Dayton. Gebhart was plaintiff below, and his-claim is, in substance, that Showalter wanted him to do certain work on the house, and furnish material therefor. Showalter was irresponsible, and Gebhart would not do as desired, unless defendant, Estabrook, promised to see plaintiff paid out of the moneys which would have been payable to Showalter under the contract. Gebhart says, that without this promise of Estabrook, he would not have done the work or furnished the materials. After the work was done, Showalter, who was cognizant of the agreement between Gebhart and Estabrook, gave Gebhart an order on Estabrook for the amount due. Estabrook said he would not accept the order, not having the money, but that he had not paid Showalter, and there was enough due to satisfy Gebhart’s claim, and he would see it paid when the building was completed. Estabrook repeated his promises and assurances, telling Gebhart that it was no.t necessary to take a mechanic’s lien, as he had agreed to see the amount paid, and would do so as soon as he could borrow the money. Gebhart claims to recover $717.47 and interest.
    These statements are all denied by defendant. He denies having made any promise or agreement of any kind; says he never agreed to pay Gebhart in any way, and is at issue-with plaintiff upon all material allegations.
    In an amended answer, Estabrook sets up the statute of' fraud, averring that the alleged promise was to answer for the debt, default, or miscarriage of the said Showalter, was. not in writing, and therefore void.
    There was testimony on the part of plaintiff tending to-prove his side of the case, and that Estabrook did assume and promise as claimed. There was also testimony on the-part of defendant-, tending to prove his side, and negativeing all the assertions of plaintiff.
    "Whereupon the court charged the jury as follows :
    If the alleged promise of Estabrook amounted simply to-an agreement to answer for the debt of Showalter to Gebhart, it being admitted that there was no contract or memorandum in writing signed by Estabrook to that effect,. Gebhart ‘can not recover. On the other hand, if there was-a new and independent arrangement between Gebhart and. Estabrook by which, for the purpose • of inducing Gebhart to furnish labor and material for his house, Estabrook. promised to pay him for said work out of the funds which,, under the contract, would be coming to Showalter; thatGebhart furnished said work and material relying on this-promise; that he would not otherwise have furnished them ; that Showalter was irresponsible, and assented to the arrangement, it is your duty to enforce this contract, by your-verdict, although it was not in writing.
    Again, even if you find that there was no contract at the-beginning which, under the rule thus given, would hold Estabrook; yet, if after work was done, Estabrook being-indebted to Showalter, an arrangement was made by the consent of all parties that Estabrook should pay Gebhart the amount of his bill furnished under the Showalter contract, Estabrook assuming to pay, and Gebhart giving up-his claim against Showalter and looking alone to Estabrook,. for payment, Estabrook must be held bound by this new «contract, 'though it was not in writing, and must pay the ■debt. This arrangement or contract, to be binding on. Estabrook, must have all the features indicated, the consent ■of all parties and the extinguishment of two debts. Plaintiff is bound to satisfy you by a preponderance of proof that «one or the other of these contracts existed between the parties.
    To which charge, and every portion thereof, the said defendant, by his counsel, their excepted.
    The jury found for plaintiff, Gebhart, in the amount •claimed, and the motion for a new trial having been over-a-uled, a petition in error was filed in the supreme court. ’The alleged errors are:
    1. That said court erred in admitting the evidence offered by said "Willian F. Gebhart, to which said Joel Estabrook •objected.
    2. That said court erred in the instructions given to the jury upon said trial.
    3. That said court erred in overruling the motion for a new trial, filed in said ease by said Joel Estabrook.
    4. That the facts set forth in said petition, filed in said •cause by said "William F. Gebhart, are not sufficient to maintain said action.
    5. That.s|iid judgment was given for said William F. Gebhart, when, according to the law of the land, it ought to have been given for said Joel Estabrook.
    
      Boltin & Shuck, for plaintiff in error:
    As to whether the promise in question was void, unless in writing, cited: Brown on Frauds, § 197 (2d ed.), 197; 1 Smith’s L. C. (5th Amer. ed.), 381; Rogers v. Kneeland, 13 Wend. 114, 121; Nelson v. Boynton, 3 Met. (Mass.), 395; Mallony v. Gillet, 21 N. Y. 427; Easter v. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 Ohio St. 355; Stewart v. Campbell, 58 Me. 439; Furbish v. Goodenow, 98 Mass. 297; Plumer v. Lyman, 49 Me. 229; Richardson v. Williams, 49 Me. 558; 1 Parsons on Contracts (5th ed.), 218.
    
      The giving of the order by Showalter did not operate as an assignment of his claim against Estabrook, if any he had. Harris v. Clark, 3 Comst. 93; Cowperthwaite v. Sheffield et al., 3 Comst. 243; Mandeville v. Welch, 5 Wheat 277; Tiernan v. Jackson, 5 Pet. 580.
    
      Gunckel & Rowe, and Warren Munger, Jr., for defendant in error,
    claimed that the promise was not within the statute of frauds. Parsons on Contracts (5th ed.), 9; Alten v. Thompson, 10 N. H. 32; Thompson v. Thompson, 4 Ohio St. 133; Bethel v. Woodworth, 11 Ohio St. 393; Swihart v. Shaum, 24 Ohio St. 436; Chamberlain v. Ingalls, 38 Iowa, 300; Blair v. Walker, 39 Iowa, 406; Watkins v. Perkins, 1 Ld. Raymond, 224; Fowley v. Cleveland, 4 Cowan, 423; Nelson v. Boynton, 3 Met. (Mass.), 395; First Baptist Church v. Hyde, 40 Ill. 150; Chitty on Contracts (6th Russell ed.), 559; Mallory v. Gillet, 21 N. Y. 412.
   Wright, J.

The first error assigned is, that in admitting evidence upon the trial, the bills of exceptions purporting to shows these errors were not taken until after the trial term, and can not be considered here.

But counsel for plaintiff in error argue thus: The record ■shows only that the bills were “ filed ”- after the trial term, not showing when they were signed and made part of the record; that, in point of fact, they might have been signed and sealed at the trial term, though not “filed” till afterward, and it must be presumed that things were rightly done.

The exception must be taken at the trial, term, and it is no* exception till “filed” as part of the record. Code, § 294. If, then, not “ filed ” till a subsequent term, it is ■only an exception as of that term.

As to the third bill, however, it is different. That was taken to present alleged error in overruling the motion for a new trial. That error, if any, occurred when the motion was overruled, and the bill is properly taken as of that term. This is settled by the cases, City of Dayton v. Hinsey and P. C. & St. L. R. R. v. Porter, ante, 258, 328.

The first part of the charge relates to the nature of the alleged promise made by Estabrook. The court told the-" jury plainly, that if this promise was merely to answer for Showalter’s debt, there could be no recovery for want of writing; but, if there was a new contract between Gebhart and Estabrook, by which, to induce Gebhart to furnish the labor and material, Estabrook undertook to pay, out of funds which would be coming to Showalter; that Gebhart furnished the work and material relying on this1' promise, which he would not otherwise have done, and that Showalter was irresponsible and assented to this arrangement, then the contract might be enforced.

We see no error in this. In 1 Smith’s L. C. 507, notes to Birkneys v. Damill, it is said, “When it is doubtful whether the sale was made exclusively on the defendant’s credit, the question should be left to the jury.” And in 2 Parsons on Contracts, 11: “ Whether a contract is collateral or original, may be a question of construction, and then it is for the court; but it is often regarded as a question of fact, and then it is for the jury.”

If the jury saw fit to believe the plaintiff’s testimony, they could have found that Estabrook did agree to make the payments, and Gebhart refused to work without this assurance; and, without going into an elaborate discussion of testimony, it seems to us that, though much might be said upon either side, we can not interfere with the verdict on the ground that it is against the evidence. It presents a square conflict between witnesses, and the verdict should have been with that party to whose evidence the greatest credibility attached.

The court further charged, that if the original contract was not made, as Gebhart alleged, yet, if, after the work was done, Showalter being indebted to Estabrook, an arrangement was made, by consent of all, that Estabrook should pay Gebhart, he giving up his claim against Showalter, and looking to Estabrook alone, then Estabrook could be held, although there was no writing. The court further saying that such an arrangement must have the features of ■consent of all parties and the extinguishment of the debts.

This is making a case of novation, and wé can only make the same remarks as those applied to the other branch of the case. The matter was fairly left to the jury, .and the evidence is not such as would authorize us to interfere with their conclusion. We see no error in the other points made.

Judgment affirmed.

Scott and Ashburn, JJ., did not sit.  