*334Denied September 20, 1921.
On Petition for Rehearing.
(199 Pac. 920.)
Rehearing Denied.
Mr. O. B. Mount, for the petition.
Messrs. Crawford & Eakin, contra.
In Banc.
HARRIS, J.In our original opinion we ruled that the trial court should have directed a verdict for Townley as requested by him. Our ruling was based upon the theory that the promise made by Townley was a collateral promise to answer for the debt of Bidler and therefore was within the statute of frauds.
The plaintiffs petitioned for a rehearing, because, they say, (1) Townley waived the statute of frauds; and (2) Bidler was not served with notice of appeal, with the result that this court is without jurisdiction.
Townley, as appellant, contended in his printed brief presented at the original hearing that the statute of frauds applied; and this was the only contention presented by him. In their printed brief presented at the original hearing the plaintiffs confined their efforts to an attempt to show that Townley’s promise was direct and not collateral and therefore not controlled by the statute of frauds. Indeed, aside from the single point that under our Constitution no fact tried by a jury shall be otherwise re-examined in any court, every point and every citation made by the plaintiffs under the heading “Points and Authori*335ties” was in support of the contention that the promise of Townley was a direct and not a collateral one. In their petition for a rehearing, however, the plaintiffs for the first time contend that Townley has waived the right to rely upon the bar of the statute of frauds and that the failure to serve Bidler with notice of appeal prevented this court from acquiring jurisdiction. In compliance with our request counsel for the respective parties have submitted for our consideration carefully prepared briefs giving their reasons for their respective contentions concerning the questions raised for the first time in the petition for a rehearing.
We are unable to concur with the plaintiffs in their contention that Townley waived the bar of the statute of frauds. The language of our statute is exceedingly drastic; for in express terms it is declared that “the agreement is void” unless there be a writing, and evidence “of the agreement shall not be received other than the writing”: Section 808, Or. L.; Lueddemann v. Rudolf, 79 Or. 249, 258 (154 Pac. 116, 155 Pac. 172). See, also, Taggart v. Hunter, 78 Or. 139, 155 (150 Pac. 738, 152 Pac. 871, Ann. Cas. 1918A, 128).
It may be assumed on the authority of Hawley v. Dawson, 16 Or. 344, 347 (18 Pac. 592)) that an appellant must in some form raise the question of the statute of frauds in the trial court before he can rely upon the statute in the appellate court. Our statute declares that an agreement to answer for the debt of another is void unless in writing; and hence in contemplation of law there is no contract unless there is a writing. The complaint alleges that at the request of Bidler and Townley the plaintiffs sold and delivered to the defendants the goods, wares and merchan*336dise mentioned in the complaint. The answer of Townley was a general denial. In other words, Townley denied that he had made any contract with the plaintiffs. Townley’s reliance upon the statute of frauds was not a defense involving a confession and avoidance. • He did not confess an agreement and then avoid it by invoking the statute; for under the statute there was no agreement. Townley's pleading enabled him to raise the question of the statute of frauds: Great Western Land Co. v. Waite, 87 Or. 488, 494 (168 Pac. 927, 171 Pac. 193); Render v. Lillard, 61 Okl. 206 (160 Pac. 705, L. R. A. 1917B, 1061,1065) ; 25 R. C. L. 745.
Townley did raise the question of the statute of frauds; for he not only excepted to certain instructions given by the court but he also excepted to the refusal of the court to give certain instructions, among which was a requested instruction directing the jury to return a verdict for Townley. In their printed brief the. plaintiffs say:
“The only question was and is was the stuff furnished on the credit of Mr. Townley, and the jury found it was.”
And again the plaintiffs say in concluding their printed brief:
“The only point in the lower court appellant reserved for review, was whether the promise of Townley was original or collateral and the jury decided it adverse to his contention.”
Townley’s pleading enabled him to invoke the protection of the statute of frauds; and he did invoke the statute by excepting to the giving and to the refusal to give certain instructions: Hawley v. Dawson, 16 Or. 344, 347 (18 Pac. 592). See also note in L. R. A. *3371917B, 1072. We are unable to agree with the contention that Townley did not raise the question of the statute of frauds in the Circuit Court.
If Bidler was an adverse party within the meaning of Section 550, Or. L., as judicially construed, then the failure to serve Bidler with notice of appeal prevented the acquirement of appellate jurisdiction; and consequently if this court has not acquired jurisdiction we must, even though the question is first raised on a petition for a rehearing, dismiss the appeal and leave the judgment as we found it. If a reversal or modification of the judgment would injuriously affect Bidler, then he is an adverse party, and in that event notice to him was indispensable since he has not appeared in the appellate court: D’Arcy v. Sanford, 81 Or. 323, 327 (159 Pac. 567). Will a modification or reversal of the judgment so far as it relates to Townley injuriously affect Bidler? Bidler expressly admitted in his answer that on his own individual account he purchased items of merchandise from the defendants and he “assumed liability for anything not paid for, but alleged that the bill was fully paid. ’ ’ Townley denied the making of any promise to pay for any of the items mentioned in the complaint. On the evidence presented by the plaintiffs, even when viewed in a light most favorable to the plaintiffs, the debt was that of Bidler, and the promise of Townley was at the most a promise to pay the debt of Bidler. In the answer filed by Bidler he says the debt was his alone. As pointed out in the original opinion there was not a scintilla of evidence showing that Bidler and Townley jointly promised to pay the plaintiffs. If, then, the judgment stands undisturbed the plain*338tiffs can, it is true, compel either Bidler or Townley or both of them to pay the judgment. If the plaintiffs compel Bidler to pay the whole amount he could not compel Townley to contribute to him, because as between Townley and Bidler the debt is that of the latter. If, however, Townley is compelled to pay the judgment he can in turn compel Bidler to reimburse him, for the reason that as between him and Bidler he has paid Bidler’s and not his own debt. As between Bidler- and Townley the debt is in the final analysis the debt of Bidler and cannot be said to have been finally liquidated as between all parties until it is fully paid by Bidler. If the judgment is reversed as to Townley the reversal merely erases Townley’s name from the judgment; but this in nowise injuriously affects Bidler because his ultimate liability is still the same. If the judgment is undisturbed Bidler must ultimately pay the whole debt. If the judgment is reversed as to Townley, nevertheless Bidler must ultimately pay the whole debt. A reversal as to Townley does not injuriously affect Bidler; and consequently failure to serve him with notice of appeal did not prevent this court from acquiring jurisdiction.
The petition for a rehearing is denied.
Rehearing Denied.