Newton Grain Co. v. Pierce
80 S.W. 268
Mo. Ct. App.
1904
Check Treatment
BLAND, P. J.

(after stating the facts). — The evidence shows that plaintiff: refused to sell Dennis feed on his own account, and in order to procure feed on credit, Dennis hunted up Pierce and the two went to plaintiff’s place of business; that Pierce said to plaintiff’s manager for him to let Dennis have feed and he would “stand good for it or pay for it;” that after-wards he made one or more payments to plaintiff for feed furnished Dennis; that, as found by the court trying the case, plaintiff charged the feed to the account of Dennis only. The explanation for thus keeping the account, as given by plaintiff, is that it was done for convenience and to prevent' confusion. Plaintiff’s evidence shows that it would not have sold Dennis the feed but for the promise of Pierce to stand good for it or see that it was paid for. The evidence shows that the pay from the government, for the services rendered by Dennis under contract with Pierce, came in the form of checks to Pierce, who was under bond to the postoffice department for the performance of the services which Dennis was rendering, and that he and Dennis communicated the fact that Dennis’ pay was coming through him to the plaintiff.

Brandt, in his work on Suretyship and Guaranty, section 56, says: “If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, ‘if he does not pay you, I will, ’ this is a collateral undertaking, and void without writing, by the statute of frauds. But if he says, ‘let him have the goods, I will be your paymaster,’ or ‘I will see you paid,’ this is an undertaking as for himself, and he shall be intended to be the very' buyer, and the other to act but as his servant.”

In Baldwin v. Hiers, 73 Ga. 739, it is said: “Where one, whose son desired to purchase certain goods, agreed with the owner that if he would let the son have such goods, he (the father) would see the debt paid or would *204pay it, this was an original and not a collateral undertaking. ”

In Cruse v. Foster & Estes, 76 Ga. 723, it is said: “If the plaintiffs refused to furnish goods to a son on credit, and were informed by the father that, if they would do so, he would see that they were paid, and they thereupon furnished goods to the son and charged them on their books to the father and son merely as a memorandum, to enable them to distinguish this from another individual account of the father, and to show precisely the amount furnished to the son, in the absence of other testimony, this would be sufficient to uphold the contract of the father as an original undertaking.”

In Mackey v. Smith, 28 Pac. 974, the Supreme Court of Oregon said: “Where plaintiff refuses to furnish any further supplies to. a certain person, unless the defendants will become responsible, the parol promise of the defendants to pay for all supplies thereafter delivered is an original undertaking . . . and the fact that the supplies were charged on the books to the person to whom they were delivered is not conclusive that the sale was.made upon his credit, but may be explained by showing upon whose credit the sale was in fact made.”

In Kansas City Sewer-Pipe Co. v. Smith, 36 Mo. App. l. c. 625, the Kansas City Court of Appeals says: “In executing contracts it becomes chiefly a matter of fact or of construction, whether the new promisor in fact assumed the attitude of principal or stood as a mere security for the performance of another.”

The inquiry, “As to whom it was understood between the parties that the creditor should look for payment in the first instance, ’ ’ like any other fact must be answered by the evidence adduced at the trial. The court found that the defendant was bound as an original promisor and that the plaintiff looked to him for payment. There is ample evidence in the record to support this finding. The statute of frauds, relied on by defend*205ant was, therefore, of no avail under the facts as found by the court. The judgment is manifestly for the right party and is affirmed.

Beyburn and Goode, JJ., concur.