32 S.C. 273 | S.C. | 1890
The opinion of the court was delivered by
This was an action brought by plaintiffs before a trial justice to recover $58.21. The trial justice, T. M. Cathcart, Esq., reported as follows: “It seems that the defendant has recently erected a hotel in the town of Winnsboro; that she employed one Frank Leitner, a carpenter, to put up this building for her, and that she was to pay a fixed sum to him; that Leitner was to furnish all materials to be used on the building, except some the defendant had already on hand; and that defendant was to pay him $1,500 for putting up the building ; and that she was to make advances from time to time, to enable him to proceed with building. Leitner procured lumber from a number of mill men, and among others the plaintiffs, who had some difficulty in collecting their first bill, and threatened to have the lumber attached before it was put on the building. After this threat, Mrs. Duval consented to furnish the money to pay the bill, and did furnish it; that there and then a conversation occurred, in which it was agreed that plaintiffs should send on the remainder of the bill, and, as Mr. Morrison (who negotiated the transaction) understood, that Mrs. Duval would pay, or furnish the money to pay, the hill; that after this conversation, plaintiffs shipped to Leitner, the contractor, a bill of lumber of the value of $158.21, of which $100 was paid, leaving a balance of $58.21. The plaintiffs did not change the consignee, and charged no lumber on their books to the defendant.”
From this judgment the plaintiffs appealed to the Circuit Court, and Judge Pressley confirmed that judgment. The plaintiffs now appeal to this court, filing twelve grounds. They are long, may be found printed in the “Brief,” and need not be restated here.
The statute of frauds provides that no action shall be brought to charge the defendant for the debt, miscarriage, or default of another, unless the contract shall be in writing. This implies, of course, that an original contract, for good and sufficient consideration, may (with well known exceptions) be enforced, whether the contract be merely verbal or in writing. The question here is, whether there was any agreement between these plaintiffs and Mrs. Duval as to the payment for the second bill of lumber; and if so, what were the terms of that agreement — whether Mrs. Duval only agreed to guarantee the debt of Leitner, or made an independent original agreement that she would pay for the lumber, releas ing and wholly disregarding Leitner, as if he had never been in any way connected with the matter of the lumber. The alleged-agreement was verbal, and the testimony upon the subject was conflicting.
It would seem that there must have been some understanding as to the payment for the lumber, for it was to Mrs. Duval’s interest that it should be delivered, and the plaintiffs (after their recent experience) would not have delivered it but for an expectation, at
While this court would undoubtedly have the right, as matter of law, to construe a contract in writing, yet where the contract is verbal — to be reached only through the medium of testimony— and the tribunal appointed for that purpose has considered that testimony and reached a conclusion in a law case, we do not think that this court, in the exercise of its appellate jurisdiction for the correction of errors of law, has the right to review that finding. Davis v. Schmidt, 22 S. C., 128. The fact as found by the trial justice, and concurred in by the Circuit Judge, must be considered as established, and that is necessarily conclusive of the case.
In the case of Taylor v. Drake (4 Strob., 431), it was held, that “if the person, for whose use goods are furnished, be liable at all, any promise by a third person to pay that debt must be in writing.” Leland v. Creyon, 1 McCord, 100. See Bronson v. Stroud, 2 McMull., 372. In Williams v. Caldwell (4 S. C., 100), it was held as follows: “G. requested W. to ship to him certain goods, and C. promised W. to accept G.’s draft for the amount of the goods if he would comply with the request; which was done, and the goods charged on W.’s books to G.: held, that G.’s promise was within the statute of frauds, and void for want of writing.” In the opinion of the court, it is said : “The transaction, regarded as one of purchase and sale, was between the plaintiffs and Gayle. The promise of the defendants were both inducement and consideration to such contract of sale, and was, in substance, a contract to assure the performance of what Gayle had undertaken to do, viz., to pay for the goods purchased.”