Bloom v. McGrath

53 Miss. 249 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court.

The plaintiffs filed with their declaration an account consisting of a single item, thus, “ To amount of bill rendered, $294.” The defendant having made a motion to quash the process, under § 580 of the Code, which prescribes that in suits on open accounts there shall be filed before the issuance of process an itemized bill of particulars, the motion was met by a counter one on the part of the plaintiffs for leave to file such itemized account. Thereupon the court overruled the motion to quash the process, and gave leave to file the amended account. This action of the court constitutes the first assignment of error. We think there was no error in this particular. The power of the court to permit the amendment was ample under § 621 of the Code.

There was no error in the admission of testimony. It is not competent for a witness to give his impressions of a conversation as something apart from and independent of what was said; but it is evident that in the case at bar the witness used the word “impression” as synonymous with “recollection.”

It was erroneous for the court to instruct the jury that they must disregard the defendant’s evidence denying the correctness of the account sued on, because the account was sworn to and the plea was unaccompanied by an affidavit of denial. The parties had gone to trial on the pleadings without objection, and without any motion by the plaintiffs for a judgment under the statute. It was too late, after having examined witnesses at length upon the merits without objection, and with no motion to exclude the testimony, to seek the advantage of the statute by an instruction to the jury. The plaintiffs, by omitting to ask for a judgment or to object to the introduction of the evidence, had waived their rights under the statute and consented to a trial by jury.

It is urged, however, that there will be no reversal on account of this erroneous instruction, because on the whole case the verdict was right. This necessitates an examination of the case upon the merits.

The defendant E. Bloom was sued upon an account for goods sold and delivered to his nephew A. Bloom, upon the ground that they had been sold upon the credit of the uncle and not of the nephew, and that the promise- of the former to pay for them was an original and not a collateral undertaking, and was therefore binding, though verbal.

Under what circumstances assumptions of the debt of another are within or without the operation of the Statute of Frauds has undergone such frequent examination in our courts, that any extended discussion of the question is not believed to be called for in the present instance.

Perhaps no more satisfactory statement of the true principle governing such cases has been or can be given than was arrived at in the case of Sweatman v. Parker, 49 Miss. 19, 28, in which it was declared that “ the only test and criterion by which to determine whether the promise needs to be in writing is the question whether it is or is not a promise to ansAver for a debt, default or miscarriage of another, for which that other continues liable.”

The original debt involved in that case Avas one which had been contracted before the assumption upon which it was sought to render the defendant liable, and the test of his liability was made to depend upon the question whether the original debtor was released by the defendant’s assumption. The test is no less satisfactory where, as in the case at bar, the assumption of the party sought to be charged was simultaneous with the creation of the debt. In such a case the test must be whether the party who received the consideration was or was not bound. If he was, then there can be no valid obligation by parol upon any one else to pay the debt. The intent of the Statute of Frauds is, that no obligation shall be. created by parol which shall be binding both upon him who receives the consideration and upon another person Avho undertakes to pay the debt. If one is bound the other is not.

Let us test the ease at bar by this criterion. We shall leave out of view the testimony of the defendant, except to say that it utterly negatives the idea of any liability upon him.

James Compton, one of the plaintiffs, testified that he resided in Jackson, and was a member of the firm of McGrath & Compton, wholesale grocers in the city of New Orleans, where his partner resided and conducted the business; that in the summer of 1872 the defendant came to him and “asked him to sell goods to A. Bloom, nephew of the defendant, saying that he, the defendant, would be responsible for, or would see the bills paid. The witness did not remember, and was unable to give, the language or words used by the defendant, except to say that the substance and purport of the conversation was that the defendant would pay or see paid all the bills for goods sold by the witness’s firm to his nephew.” Shortly thereafter the goods began to be delivered. They were ordered by the nephew, A. Bloom, directly by letter to the firm in New Orleans, or by memoranda handed to Compton in Jackson and by him transmitted to his firm. The goods were charged on the books of the concern to A. Bloom, and shipped directly to him. Monthly statements of the account were rendered to him, and from time to time he made payments thereon. The name of E. Bloom (the defendant) was not upon the books of the firm, nor was any communication whatever had with him on the subject of the accounts until the nephew failed and ran away, after which Compton informed him that the firm held him liable for the debt, a liability which the defendant at once denied. The account, when handed to the attorneys for suit, was made out against A. Bloom. E. Bloom’s name did not appear upon it until placed there by the attorneys.

Compton stated that the goods were sold altogether upon the credit of the uncle, and that his firm would not have sold goods to the nephew except for cash. In rebuttal of this statement, however, a receipt from the firm, executed before the date of the first conversation between Compton and E. Bloom, was produced, in which was acknowledged the receipt “ from A. Bloom of forty dollars on account,” which would seem to show that there had been credit dealings between the parties previous to the arrangement with the uncle.

Two other witnesses for the plaintiffs testified in substance that, after the absconding of A. Bloom, the defendant stated to them that he would pay, or that he would have to pay, the debt of his nephew to the plaintiffs. We attach but little importance to this testimony. It only showed at most that the defendant then thought that he was legally bound. An expression of his opinion to this effect could not create a liability if none existed.

The testimony of Compton, we think, fails to show a valid legal obligation, upon the defendant to pay the debt. It is at most equivocal and doubtful, and therefore insufficient. He is unable to say whether the defendant’s promise was to pay the debt or to see it paid. If the latter, the natural presumption would be that it was a collateral undertaking and consequently void. His statement, that he did not know A. Bloom, and would not have sold him goods on credit, does not strengthen his case. He might be unwilling to sell the nephew goods on his own credit, and yet be entirely willing to do so upon the suretyship or guaranty of the uncle. The question at issue is whether the goods were sold upon the credit of the uncle alone, or whether they were sold to the nephew upon the suretyship of the uncle. The testimony of the witness in relation to the language used by the defendant makes one theory as probable as the other, while the subsequent dealings between the parties greatly incline the scales in favor of the defendant; and this we say in view of the plaintiff’s testimony alone, without regard to that for the defendant. Judgment reversed and cause remanded.