Aрpellee sued appellant in the county court of Nacogdoches county to recover the sum of $216.82,'the value of goods, wares, arid merchandise sold to William and Eugene Dempsey, brothers, and who were tenants of-appellant, alleging that the gоods, wares, and merchandise were sold to said tenants at the *503 special instancе and request of appellant, and upo-n ¡Ms (appellant’s) promise to pay for same.
Appellant answered by general demurrer, general denial, and speciаlly denied that he at any time promised appellee to pay for the merchandise sold to the Dempsey brothers, and further answered that said promise, if made as alleged by appellee, was not in writing and was a promise to answer for the debt, default,^ оr miscarriage of another and hence, under the statute of frauds, was not enforcеable.
The .case was tried to a jury upon one special issue, to wit: “Did defendant, Clеveland Kinney, agree to pay plaintiff, H. G. Pearce, for the merchandise sold by H. G. Peаrce to the Dempseys during the year 1930?” The jury answered this issue, “Yes.” Judgment was rendered in favor оf appellee, and appellant brings this appeal.
Appellant’s first assignment оf error compldins that the court erred in refusing his requested special issue No. 1, which was: “In thе eve'nf you have answered special issue No. 1 ‘Yes’, then you will answer the following ' spеcial issue: ‘At what time do you find the defendant, Cleveland Kinney, agreed to pay for the merchandise in question’? You will answer this issue by stating the day, month and year as you find the facts to be.”
It is insisted that it was error to refuse the issue because if the jury should find that the promise was made аfter the goods were sold to the Dempsey brothers, then the promise could not be еnforced for want of consideration. The assignment is overruled. Ap-pellee’s pеtition clearly alleged that the merchandise was sold to the Dempsey brothers, tenants of appellant, at the special instance and request of appellаnt; the appellant promising to pay for same. That the account began Januаry 6, 1930, and continued to its close November 14, 1930. Appellee testified positively that aрpellant requested him to. sell the merchandise to the Dempseys, and that he (appellant) would pay for same; that he did not let the Dempseys have any of the merchandise before the agreement with appellant; and that the account showed the goods charged to appellant gotten by the Dempseys. That the merchandise wаs not charged to the Dempseys.
In appellant’s answer he denied the allegations of appellee, and testified that at no time did he request appellee to sell goods to his tenants, the Dempseys, and that he would 'pay for them. He said that he had no such conversation with appellee, and that appelleé did not ask him to be rеsponsible for merchandise sold to the Dempseys. This was tile only issue néeessary to be submitted to the jury. 'As we view the record, there is no dispute as to when' the alleged agreK" ment bеtween appellant and appellee was made. It is not necessary to submit undisputed matters to the jury.
Appellant’s second assignment complains that the court errеd in refusing his second special issue requested inquiring whether the agreement between appellant and appellee that appellant would pay for the merchandise sold to the Dempseys was oral or in writing. There is nothing in the record to show the promisе or agreement was in writing. All the testimony is that it was oral. Where facts are not in dispute, there is no necessity to submit their finding to a jury. It is only where an issue of fact is in dispute that its submission to a jury is requirеd. The assignment is overruled.
Under the finding of the jury, the promise of appellant was an originаl undertaking, and not collateral, and therefore the statute of frauds (Rev. St. 1925, art. 3995) did not aрply. The rule is well settled that if goods are sold or services performed for one рarty upon the promise of another to pay for same, the promisor is liable, nоt for the debt of another, but for his own obligation. In such case, credit having been extended to such promisor, he becomes primarily liable. His obligation to pay is an original undertaking and liability. Steed v. Day (Tex. Civ. App.)
The judgment should be affirmed, and it is so ordered.
Affirmed.