76 Pa. 97 | Pa. | 1874
delivered the opinion of the court, May 18th 1874.
The castings for which the plaintiffs claim payment were furnished to A. K. Bowers and not to the defendants; Bowers was
The plaintiffs knew nothing of this arrangement until Bowers exhibited the article to Harnish to show him that he would be provided with the means of payment. They charged the castings to A. K. Bowers, and it was only, as Harnish testifies, “ after he knew Messrs. Herr &'Eshleman were in combination with A. K. Bowers, he then added the ‘ & Co.’ to the entries of the charges made and delivered for the horse-rakes.” It is evident he thought the agreement constituted Bowers and Eshleman & Herr partners. Then it was not until the 9th of April, when he had already finished about two-thirds of the castings, he had the conversation with the defendants out of which this action grew. After some reluctance Eshleman & Herr advanced for Bowers $800 — in their note, and took his receipt, referring to their agreement. It was at this time the alleged promise was made. Up to this moment it is clear the relation of debtor and creditor between Bowers and the plaintiffs existed, and not between the defendants and them. How was the relation changed? The burden of proving a change of relation clearly and satisfactorily lay then on the plaintiffs; if not so proved, Bowers continued to be their debtor and the promise of the defendants was to pay his debt, and not being in writing, fell within the Statute of Frauds, 26th April 1855, sept. 1. This alternative was fairly presented to the jury in plain language, by the learned judge below. The only question, therefore, is, whether the evidence was sufficient to establish the change of relation, and make the defendants the principal debtors.
Bowers says, referring to the meeting to obtain the further advance of $800 : “ They (defendants) gave him the note and told him to hurry on with the rest of the castings, to finish the eight hundred rakes.” “ I heard them tell Harnish to hurry up the balance,” again, “ at that time about two-thirds of the castings were finished. I ordered the goods to make the rakes, and they paid for them when they had the money. I sold the rakes and gave them orders to pay.” Harnish testified to the same conversation as to the advance of $800 to Bowers. He says: “Before we parted there, they said we should hurry up the balance of the eastings for the remainder of the rakes; they would settle for the balance after they were delivered.” Again, “they said I should hurry and deliver all the castings, and when they were all delivered they would settle and pay for the balance.” Now in all this there was not a word expressing or even indicating a change of the relation between the plaintiffs and Bowers, or that the defendants took the
But when a change of relation is alleged for the purpose of taking the case out of the Statute of Frauds, it lies upon the plaintiff to prove it by clear and indubitable evidence. The promise here must be attributed to the existing relations of the parties, in which Bowers was the purchaser of the castings from Harnish & Beecher, and Eshleman & Herr were mere loaning creditors of Bowers, under their written agreement and judgment against him. When the latter advanced the $800 they were reluctant and told Harnish they had advanced about all they were to under the agreement. Bowers Avas then becoming slow, and there is no probability that they would step out of their agreement and judgment to assume a new and worse relation; besides, there was a manifest reason for their expressions to Harnish to hurry up the castings. The eight hundred rakes were to be finished by the 1st of May, and this Avas the 9th of April. The season for making sales was rapidly approaching and the rakes should be in the market.
They were straining a point in raising the $800 for Harnish, and nothing was more natural when they were doing him a favor than to say to him now hurry up and we will settle the balance, without intending to change their position in the case. Their conduct was entirely consistent with existing relations, Awhile there was nothing to justify the conclusion that they became the principal debtors of the plaintiffs. There was no suflicient evidence therefore to take the case out of the statute requiring a writing to answer for the debt in default of another.
We think there was error also in admitting the book of the plaintiffs as a book of original entries, to prove the charges for the castings. It was not competent evidence of the performance of a special contract with Eshleman & Herr, and could have been received only as a memorandum of the items, to refresh the memory of the witnesses.
Judgment reversed.