37 Ala. 577 | Ala. | 1861
In the construction and applica
The rule thus declared is adopted by Sergeant Williams, as--a. correct construction of the statute, in his note to Firth v. Stanton, 1 Wm. Saunders, 211 (a), and has been sustained by a great weight of authority in this country as
The law of this case, therefore, is, that if the transaction was such that the Weirs areriegally bound-to the-plaintiffs to pay for the .-goods,’the promise of the defendants was not direct, but collateral, and, -therefore, within the statute of frauds; and the converse of the proposition is -also true. It follows, that the court erred in i*efusing to give the fourth and sixth charges asked by the defendants.
It is proper to remark, that there is nothing in the evi-
2. Whether a contract-is collateral or original, may be a question of construction,-as in Scott v. Myatt, 24 Ala. 489 ; and then it is-for the court.- But in cases like the present, the question, to 'whom credit was given, is one of fact to be determined by the jury. — 1 Parsons Contr. 500; Storr v. Scott, 6 C. & P. 241; Browne’s Stat. Frauds, § 199; 1 Smith’s Lead. Ca. (m. p.) 134, note; Scott v. Myatt, supra. The entry in the hooks of the sellerds often of great importance, in determining, to whom credit was given. Being made by the seller, it is, of cou/rse, of -much greater weight when against him, than when it sustains his claim. If, on production of the plaintiff’s «books, it appears that the defendant was not originally debited there, but that the goods were charged against the person receiving them, this fact, if unexplained "by other circumstances, would be very strong, if not- conclusive evidence, that credit -was given to the person- receding -the goods. Storr v. Scott, 6 C. & P. 241; Hazen v. Bearden, 4 Sneed, 48 ; Leland v. Creyon, 1 McCord, 100; Matthews v. Milton, 4 Yerger, 576 ; Flanders v. Crolius, 1 Duer, 206 ; 1 Parsons Contr.*499; Browne's Stat. Fr. § 198; 1 Smith’s Lead. Ca. (m. p.) 134, note. But, as the question, to
As the judgment must be reversed for the errors before pointed out, and as what we have already said will probably furnish a sufficient guide for the conduct of the cause on another trial, we do not deem it necessary to examine particularly the other charges asked and refused, or the ■ charges given and excepted to.
Judgment reversed, and obtuse remanded.