Boykin v. Dohlonde & Co.
37 Ala. 577
Ala.
1861
Check Treatment
R. W. WALKER, J.

In the construction and applica*581tion of that branch of the statute of frauds regulating promises made by one person to answer for the debt, default, or miscarriage of another, numerous difficulties have arisenv and many perplexing distinctions have been taken. But one anchorage at least has been gained by the course of decision in England and in this country; that is, that when the promise of the' defendant is to pay for articles to be furnished to a third person, if the transaction be such that the third person is responsible to the person who supplies the articles, the promise .of the defendant is collateral, and, if oral, not binding. This is the principle decided! in the leading case of Buckmyr v. Darnall, 2 Lord Raymd. 1085 ; S. C., 1 Salk. 27. There, in consideration that the-plaintiff would deliver his horse to one English, the defendant promised that English should return him safe. Holt, C. J., Gould and Powell, Justices, were at first of opinion; that the case was not within the statute,' because they thought that English was not liable upon the contract.. Mr. Justice Powys differed. The chief-justice and'his associates in opinion agreed, that if any trust was- given to-English, then the case would be within the statute ; but' they thought that no credit had .been given to him; The-* case stood over for further consideration.;-and the chief-justice having advised with* the judges of. the court of king’s bench, it was finally determined, that, as English might have been charged on the bailment, in detinue, on the original delivery, the promise made by the defendant was within the reason, and words of the statute. The-same doctrine was - laid- down in- Matson v. Wharam, (2 Term R. 80,) by Buller, J., who said, “ The general line now taken is,.that, if the person' for- whose use the goods are purchased is liable at all, any other promise by a third person to pay- that debt must be in writing ; otherwise, it is void by the statute of frauds, 29 Car. II, c. 8.”

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 *582well as in Great Britain. When, therefore, am action is brought against one, charging him with the value of goods delivered to another, and on his promise to pay ; and it is set up in defense, that the promise was to pay the debt of another, and was not in writing, the decisive question is, to whom was tire credit given. If the credit was given solely to the defendant — that is, if the goods were really sold to him, though delivered to another — the statute is then out of the case. But,'if the whole credit was not given to the defendant — rthat is to say, if any credit at all v/asgiven to the party receiving the goods — the promise of the defendant is collateral, and within the statute. For, in that case, the plaintiff would have a remedy against the party receiving the goods; and all tire cases -show -that it does not matter upon which of (the two parties the plaintiff principally depends-.for payment, so long as the person for whose use the goods are furnished is at all liable to him. Authorities supra; Anderson v. Hayman, 1 H. Black. 120 ; Barber v. Fox, 1 Stark. R. 270; Chase v. Day, 17 Johns. 114; Rogers v. Kneeland, 13 Wend. 114, 121 ; Brady v. Sackrider, 1 Sandford S. C. R. 514; Cahill v. Bigelow, 18 Pick. 369; Matthews v. Milton, 4 Yerger, 576 ; Caperton v. Cray, 4 Yerger, 563 ; Hazen v. Bearden, 4 Sneed, 48, 50 ; Cutler v. Hinton, 6 Rand. 509; Ware v. Stephenson, 10 Leigh, 155; Noyes v. Humphreys, 11 Gratt. 636; Leland v. Creyon, 1 McCord, 100 ; Taylor v. Drake, 4 Strob. 431; Faires v. Lodanc, 10 Ala. 50 ; Puckett v. Bates, 4 Ala. 390; Sanford v. Howard, 29 Ala. 691; Browne’s Stat. Frauds, §§ 197-8; Addison Contr. 37-8; 3 Kent, (m. p.) 123.

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-*583‘dene# which warrants the idea,‘that this ‘-wasra joint purchase of the goods by the defendaiits-and fhe-Weirs, for the use of the latter. The undertakings of the parties were altogether distinct, and the liabilities growing out of them must also he distinct. -If the Weirs are liable at all, it is as- principals ; and--if the defendants are liable, it is not as co-promissors with’-the Weirs, but by virtue of-a cHstincti'contract of their own, tp which the Weirs-were not parties. - Hence che'question, whether a direct purchase by two persons, for the use of one, is governed by the rule above laid down, or constitutes an'ekception-to'itpdoes not arise upon the record, and we express no opinion in regard to it. — See Wainright v. Straw, 15 Ver. 215; Williams, Ex parte, 4 Yerger, 579 ; 1 Smith’s Lead. Cas. (5th Am. ed.) 380, 382 ; Browne’s Stab. Frauds, §§1 97-8 ; 2 Parsons Contr. 301; Norris v. Spencer, 18 Me. 324.

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 *584whom,credit was given, must, depend upon the intention of the parties, the fact that, the goods are charged to the person.receiving them, is. notconclusive, but may be, explained, and made consistent with the assumption of the defendant’s primary liability. Other, circumstances in. the case may show (as was done in Sanford v. Howard, 29 Ala. 684, and Hazen v. Bearden, supra,) that the account was so kept for convenience, and to, avoid confusion-¡and misunderstanding; and that iq point of fact the credit was given to the defendant, and,he alone considered liable for the goods. — See, also, Cutler v. Hinton, 6 Rand. 509 Loomis v. Smith, 17 Conn. 115. On the other hand, if the defendant has been treated by.-the person selling the goods, and has himself acted as .if he were the sole party liable, that, if not explained by other, evidence, would be a circumstance conducing to show-that: his promise was. not collateral. But it is impossible to specify any one fact, or set of facts, on, which the question to whom the plaintiff gave credit, is to. be determined; and the weight to which any particular fact may be, entitled, must vary with the varying circumstances with:which it may be found; connected. Conse- - quently, when there is auy conflict, of evidence upon the subject, the weight to be given, to any particular circumstance should be left to the jury, who, in deciding the question, to whom the credit was given, should take into-consideratiom “the extent of the undertaking, the expressions-used, the situation of, the parties, and all the circmn- - stances of the case.” — Elder v. Warfield, 7 H. & J. 391 Hazen v. Bearden, 4 Sneed, 48; Browne’s Stat. Frauds, 199.

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.