13 Md. 190 | Md. | 1859
delivered the opinion of this court.
There is no substantial difference between this case and Conolly vs. Kettlewell, et al., 1 Gill, 260, in which it was decided, that the defendant could not be held answerable, where he had promised to pay for goods, if another person did not, such words importing a collateral and not an original liability. It was laid down as a general rule, that wherever the party undertaken for is originally liable on the same contract, the promise to answer for that liability is collateral, and must be in writing, as if one gives credit to another for goods sold and delivered, on the promise of a third person :ito see him paid.” We cannot doubt, that John S. Cropper was liable for the goods delivered to him, or that the plaintiff considered him as debtor for them. They were selected by and charged to him, as was the state of facts in 1 Gill, 260; and there is nothing to show that he was not credited by the plaintiff. Sometimes the question arises, to whom was the credit given at the time of the sale and delivery of the goods, and it may depend on inferences to be drawn from ah the facts and circumstances attending the transaction, as in Elder vs. Warfield, 7 H. & J. 391; Northern Central R. R. Co., vs. Prentiss, 11 Md. Rep., 119; Smith’s Law of Contracts, 34, (56 Law Lib.) But if the court see that the evidence is not legally sufficient to charge the defendant, as upon an.original undertaking not collateral to the liability of another, there is no propriety in sending the parties to a jury. Hence, in Conolly vs. Kettlewell, the Court of Appeals, deeming the words insufficient to create such a responsibility, reversed the judgment and refused a procedendo.
We are of opinion that the prayers on the part of the defendant were properly refused, because, the first assumes that the debt was contracted by John S. Cropper, when the question was, whether it was the original debt of the defendant;
The first instruction, on the part of the court, was erroneous, in assuming that goods were sold; and also, because it left to the jury to find, that they were sold on the credit of the defendant, when the evidence was not legally sufficient to warrant such finding. 1 Gill, 260. It was also defective in not requiring the jury to find the delivery as well as the sale of the goods. 7 G. & J., 28, Cole vs. Hebb. We do not say, that in every case where the words, “I will see the bill paid,” nre used, they necessarily import a collateral undertaking, and thatin no such case could the plaintiff recover, but, that where they stand alone, as here, they must be so interpreted. . If accompanied by other words or facts, sufficient to authorise a jury to find from all the evidence, that credit was given to the party using them, a different result might follow. Such was the case in 7 H. & J., 391, where the defendant was held responsible; but this appeal is decided on the authority of Conolly vs. Kettlewell & Wilson.
Judgment reversed and no procedendo.
