June 30, 1921. The opinion of the Court was delivered by This is an appeal from a judgment in favor of plaintiff against defendants, rendered in the Magistrate's Court, and affirmed by the Circuit Court.
The defendants offered no testimony, but relied throughout entirely on the statute of frauds, and contended that the guaranty of W.I. Rice was a collateral one, and came within the statute of frauds. The exceptions involve these questions. The exceptions are overruled. W.I. Rice, under the evidence, made an original undertaking to pay plaintiff, not a collateral undertaking, not a guaranty to pay the debt of another. The proof and circumstances show that he was the original obligor and affected in a pecuniary way. He does not testify at all, and makes no denial of the evidence. Plaintiff had the right to charge the account to him; the evidence shows it was his account. The contention of the appellant is conclusively settled against him in the opinion of Mr. Justice Gary (now Chief Justice) in Lorick Lowrance v. Caldwell,
Judgment affirmed. *Page 215