28 Ill. 204 | Ill. | 1862
This action was brought to recover the value of goods furnished to Samuel H. Bushnell, a son of the defendant. On the trial, Mr. Hnsted testified, that in 1858 he received a letter from the defendant, which he left with the defendant’s wife, at the house where she then lived, a few miles from the court house. Since then, the defendant and his wife had removed to Rew York, where he was at the time of the trial. A notice was served upon the defendant’s attorney to produce the letter, a day or two before the trial. It was admitted that the attorney had not the letter in his possession, and that there had not been time, sinee the notice, to have got the letter from Rew York. On this state of case, the court allowed the plaintiff to prove the contents of the letter. In this there was clearly error. The presumption is, that the letter was still in the possession of the defendant’s wife, or in his possession. In all probability, they took it to Rew York with them, with their other papers, when they removed. The notice to produce the letter should have given the defendant a reasonable time for that purpose.
There is hardly one of the thirteen instructions given for the plaintiff that is not erroneous; most of them, however, repeating the same principle as expressed by two or three. We shall notice but two particularly. The first is this: “ 1st. If the jury believe, from the evidence, that the defendant, while living in Rew York, purchased a farm in Henry county, Illinois, and came out with his wife and minor son Samuel, to said county, and then returned to Rew York, leaving his wife and son Samuel to improve and cultivate and conduct the farm, and that the son in so doing became indebted to the plaintiff for goods, wares or merchandize necessary for the maintenance of the son, or in the management of the farm, the law holds the defendant liable to the plaintiff therefor.” This instruction holds the defendant liable, although the son was carrying on the farm on his own account and his mother keeping house for him, as he swore was the ease. Such is not the law. If the young man was carrying on the farm on his own account and procured the goods on his own credit, he alone is responsible. The fourth instruction was this: u Jth. If the jury believe that the defendant requested Jacob Jacobson and Swan Swanson, or either of them, as trustees of JBishop- Hill Colony, to accommodate the defendant’s son Samuel with credit for such goods as he might need, and the plaintiff, acting upon such request, did sell to him goods upon credit, and charge the same to defendant or Samuel, the defendant is legally liable to pay tbe plaintiff for the value of tbe goods so furnished, whether they were all necessaries or not.” Tbe principle here asserted is as erroneous as the other. A mere request by one to give credit to another, does not create a legal liability to pay the debt. There must he a guarantee of the • debt or a misrepresentation of the responsibility of the person to whom the credit is given, in order to create a liability by a third person.
The judgment is reversed, and the cause remanded.
Judgment reversed.
