was only to transact her business during the continuance of her administration of her husband's estate. The averments are that the respondent was to transact all appellant's business, including such as she would have to perform as executrix, etc., and that for such services she promised to pay him a sum of money equal to the per centum allowed by law; that the estate accounted for in her final account amounted to $9,578.57, and the per centum to the sum of $380.37; that he transacted all her business, including said business as executrix from December, 1881, until the eighth of August, 1882, when she was removed at her own request; that during that time nearly all of the business of said estate was settled up.

When the appellant was removed from her trust as executrix, the respondent's employment must have been at an end, and he then certainly had a claim for compensation. Whether he could claim for full compensation, or should have claimed for partial compensation, as appellant's counsel contends he should have done, depends upon the fact as to whether the estate was or not so nearly settled up that she was entitled to the per centum. The words, "nearly all the business of said estate was settled up," do not necessarily imply that any material part of the business was unsettled. It may have been that everything which could have been required of the respondent had been done; that nothing remained to complete the settlement, save some action of the court. I admit that if this question had arisen upon a demurrer, or motion to make more definite and certain, that it would be more difficult to sustain the pleading; but it arises after judgment,after there has been a trial,-and, whenever reasonable, intendment will be indulged in its favor.

The appellant did not in her reply undertake to set out in what respect the business was not settled up. She merely denied that it was nearly all settled up. She has had a full opportunity to show before the referee in what respect it was not settled, and thereby reduce the respondent's compensation, or defeat entirely his recovery under the form in which the counter-claim is stated. Besides, the business unsettled may appertain to some matter which did not necessarily interfere with her accounting for the estate so as to entitle her to the compensation provided by law. It was not necessary that she should have received the compensation. The promise alleged was that she was to pay respondent a sum of money equal to the per centum she was entitled to receive under the law for her services as such executrix. That compensation is a commission upon the whole estate accounted for by her. Section 1148, Civil Code. And the respondent alleges "that the estate, as accounted for in plaintiff's (appellant's) final account, amounted to the sum of $9,518.51." And if this allegation is true, and we must regard it after judgment as having been proved, then she was entitled to her commission, although some minor matters remained incomplete. The difficulty is that we cannot determine from the words, "nearly all of the business of said estate was settled

up," whether the portion remaining unsettled affected the appellant's right to the compensation the respondent alleges she was entitled to receive. The appellant's attorney having failed to demur to the pleading, or attempted to compel the respondent to make it more definite and certain, and having answered it and gone to trial upon it in the form it was drawn, every reasonable intendment should be given in its favor. Under that view, we are not able to determine that the judgment is erroneous upon the point considered. To render a judgment erroneous in consequence of the insufficiency of a pleading that supports the judgment, there must be a total defect of some material averment. It may be faulty because of its uncertainty, but that must be taken advantage of by motion in the lower court. It cannot be raised for the first time upon appeal.

The other point of error claimed is that the findings of fact are not sufficient to support the judgment in favor of the respondent. This takes us back to the question whether we have any right to consider the referee's report, it not having been incorporated into a bill of exceptions. In an appeal from a decree given in a suit in equity where there has been a reference, the report might properly be certified to this court. It might in such a case be considered as a paper on file in the office of the clerk of the court from which the appeal was taken, containing the evidence heard or offered in that court. Civil Code, sub. 2, § 531. It would be so connected with the evidence that it necessarily would have to be sent here, like the authentication of a deposition. Besides, such reference is made to advise the court which orders it, and, as the case on appeal is tried anew, the appellate court is equally entitled to the benefit of the report; but in an action at law the practice is certainly different. This court ought not to be required to examine at large the report of a referee in such cases any more than it should be to examine the evidence filed with it. If, when the report of a referee in an action at law is filed, a party is dissatisfied with a ruling of the circuit court in regard to confirming it, setting it aside, or in requiring the findings to be made more specific, or further findings to be made, and desires to have the ruling reviewed in this court, he should prepare a statement of the exception, "with so much of the evidence or other matter as is necessary to explain it, and no more." By that course the point can be presented here as a pure question of law, and a coucise answer thereto given. The practice here indicated has not been enforced, but the reason, most probably, has been that counsel have failed to insist upon it. They have allowed reports of referees in such cases to be regarded as a legitimate part of the transcript, the same as they have permitted transcripts to be brought here which included all manner of documents foreign to them, and which clients have been compelled to pay for copying. We have looked into the findings of the referee in this case, and while we are of the opinion that the findings of fact, liberally construed, are sufficient to support the judgment, yet we prefer to place our decis

ion of the point upon the grounds that the report does not constitute any part of the transcript, and that we have no right to consider the question the appellant's counsel makes regarding it.

The judgment of the court appealed from is therefore affirmed.

(12 Or. 75)

HILDEBRAND and others v. WADSWORTH and others.

Filed March 10, 1885.

PARTNERSHIP-SALE BY ONE PARTNER TO HIS COPARTNER-CONSIDERATION. Where one partner sells and assigns to his copartner all his right, title, and interest in and to certain property held by them jointly, on condition that such copartner was to assume and pay all indebtedness then existing against the firm, and to indemnify his partner against their liabilities, and an agreement is entered into in writing by such copartner, with two other persons as guarantors, alleging that, in consideration of the foregoing, they thereby guaranty the performance of the said conditions on behalf of said copartner, and undertake to indemnify the other copartner against said liabilities, in an action on this contract by a creditor of the firm, to whom it had been assigned by said first-mentioned partner, held, that the contract is valid, and that the consideration expressed is sufficient to support it.

Appeal from Umatilla county.

J. J. Balleray, for appellant.

Tusten & Leasure and Bonham & Ramsey, for respondent.

LORD, J. This was an action for the recovery of money. In substance the facts are that for a long time prior to December 1, 1883, and during that year, S. E. Bloodsworth and one L. Shaw were partners in the business of retail liquor dealers at Pendleton, Oregon, under the firm name of Bloodsworth & Shaw; that during that year the said firm became, and on the first day of December, 1883, were, indebted to the plaintiff in the sum of $934; that on said first day of December, Shaw, for a valuable consideration, sold and delivered to his partner, Bloodsworth, all his interest in the partnership business, and that Bloodsworth agreed, as a part of the consideration of the sale, to pay all indebtedness of the partnership and to indemnify said Shaw against any liability therefor; that the defendants, in consideration of the above facts, sale, and agreement, did, on the first day of December, 1883, execute under seal, and deliver to said Shaw, their certain contract, of which the following is a copy:

Whereas, L. Shaw has this day sold, assigned, transferred, set over, and delivered to S. E. Bloodsworth all his right, title, and interest in and to the Arcade saloon, in the town of Pendleton, Oregon, and by the terms of said bargain and sale the said S. E. Bloodsworth is to assume and pay all indebtedness now existing against the firm of Bloods worth & Shaw, and to indemnify said Shaw against said liabilities; now, therefore, we, S. E. Bloodsworth, Emsley Ridenour, and S. P. Whitley, in consideration of the premises, hereby guaranty the performance of the said conditions of said contract on behalf of said S. E. Bloodsworth, and undertake to indemnify the said L. Shaw against said liabilities. Witness our hands and seals the first day of December, 1883. S. E. BLOODSWORTH. [L. S.] S. P. WHITLEY. Seal.] EMSLEY RIDENOUR. [Seal.

It is further alleged that the plaintiffs thereafter brought an action at. law against S. E. Bloodsworth and L. Shaw, and recovered judgment against them for $934 and costs, upon which judgment execution was issued and returned wholly unsatisfied; that the judgment remains unpaid; that on the day of the return of the execution Shaw assigned the said instrument of writing to the plaintiffs; and that S. E. Bloodsworth has failed to pay the debt due from Bloodsworth and Shaw.

The answer puts in issue all the material allegations of the complaint. On the trial, which was by the court without a jury, the plaintiffs called witnesses who testified to the signatures of the defendants attached to the writing already set forth in full, and that the signatures were attached by the defendants, and thereupon offered the said instrument or writing in evidence. The defendants objected to its introduction on the ground that it was immaterial and irrelevant, and the court sustained the objection. The plaintiff then offered in evidence the transcript of the judgment recovered by the plaintiffs against Bloodsworth and Shaw, of an execution issued thereon and returned unsatisfied, to which defendants objected on the same ground, and the objection was sustained. The plaintiffs then offered a writing, purporting to be an assignment by Shaw to them of the original instrument first offered in evidence, which was objected to on the same grounds, and the objection was sustained.

The main question to be determined arises out of the construction to be given to the indemnity contract. The objection urged below, and strenuously insisted upon here, is that the instrument appears upon its face without any consideration to sufficiently support it. This argument proceeds upon the assumption that the words "has this day sold, assigned," etc., show a completed and past transaction when the indemnity contract was given; that it constituted no part of the consideration for the original transaction, but was a collateral engagement, entered into after the sale had taken place, without any consideration of benefit or advantage for the promise of the defendants, or of disadvantage or inconvenience to Shaw. It is true, as was said in Starr v. Earle, 43 Ind. 479, that "a valid consideration for a promise is of the very essence of a contract, and must exist although the contract be reduced to writing; otherwise the promise is void. Chit. Cont. 26, 27. It need not be of benefit to the party making the promises. It must be of some benefit to himself or to a third person, or some injury, loss, or inconvenience to the promisee. Id. 29. A mere naked promise to pay the already existing debt of another, without a new consideration, is void. Leonard v. Vredenburgh, 8 Johns. 29; Chit. Cont. 52; Story, Cont. p. 356, § 433." And if, by the plain terms of the instrument, it is clear that the property was sold and delivered, then the transaction was complete and ended, and the agreement to indemnify, although given in consideration of it, was for a transaction past and gone, and which did not constitute

the inducement or consideration for such agreement or undertaking, when entered into. But is this so? Do the terms of the instrument, construed as a whole, import this effect? For if, at the time the contract of sale was made, it was agreed that this indemnity was to be given, and was a part of the consideration and inducement for it, then it would constitute a sufficient consideration for their undertaking, and ought to be enforced.

While it is true that the instrument says, "Shaw has this day sold," etc., it proceeds to say that, "by the terms of said bargain and sale, the said S. E. Bloodsworth is to assume and pay all the indebtedness now existing against the firm of Bloodsworth & Shaw, and to indemnify the said L. Shaw against said liabilities." Here are distinctly set forth two things which constitute the consideration or inducement for such sale: (1) The assumption and payment of the firm's indebtedness; and (2) the indemnity against any liability arising out of such indebtedness. The promise to indemnify is equally as important a factor of the consideration of such sale as the promise to assume and pay the indebtedness of the firm; and together they constitute the inducement for and consideration upon which the sale is to be made effectual. They are the props upon which the sale is to stand, and which will make it a complete and binding contract when the indebtedness of the firm is assumed and the indemnity furnished. The language is that he "is to assume and to indemnify," and until these things are done there is no sale. When the consideration for a sale is made to depend upon the doing of certain things, such as assuming certain liabilities, and furnishing indemnity against them, as in this case, these things must be done before the sale is complete and the title to the property vested. It is clear, therefore, by the terms of the sale, as recited, and which is of the essence of the contract, what was intended and meant by the words "has this day sold," etc. The instrument proceeds: "Now, therefore, we, etc., in consideration of the premises, hereby guaranty the performance of the said conditions of said contract on behalf of said S. E. Bloodsworth, and undertake to indemnify the said L. Shaw against said liabilities."

From what has already been said of the recital, it is manifest that the true interpretation to be given to the word "sold," is, "contracted to sell." Russell v. Nicoll, 3 Wend. 118. It was a contract to sell upon the terms therein provided and already named. It is in consideration of such contract to which the "premises" refer, and in pursuance of which the instrument was given. That contract provided by its terms that Bloodsworth is to assume and pay the indebtedness of the firm, and to indemnify Shaw against such liabilities, and in pursuance of it; and to carry that contract into effect is the consideration for which this instrument was given, whereby the parties undertake to guaranty the performance of the conditions of the contract, and to indemnify Shaw. It was done in pursuance of that contract, and is the consideration upon which it was founded. "Had