Smith Bros. & Co. v. Miller

44 So. 399 | Ala. | 1907

TYSON, C. J.

This action Avas brought to recover $78.80 due by account, resulting in a judgment for defendant. Defendant claimed credit for a bale of cotton which the testimony tends to shoAv Avas delivered by him to the wife of one of the plaintiffs at their home; and it also tended to show that this bale was received by the plaintiffs. Against plaintiff’s objection the receipt given by the wife for the cotton was admitted in evidence. There was no error in this ruling.

Among the items in the account sued on were two for goods sold and delivered to one Aldredge and one Miller. Some of the testimony tended to shoAv that' the credit for these goods Avas extended to defendant alone. Other testimony tended to shoAv that the credit was given to Aldredge and Miller, and that defendant agreed to see it paid. Again, other testimony tended to sIxoav that, Avhile the credit for the goods was given to Aldredge and Miller, the plaintiffs by agreement Avith appellant released Aldredge and Miller from their liability, upon the consideration of his (defendant’s) promise to pay for the goods. On this aspect of the case the court charged the jury that “if the goods were sold to Al-dredge and Miller, and if credit Avas extended to them, then there could be no recovery therefor against defendant, unless he agreed in writing to see it paid.” To *488this the plaintiffs excepted. The exception was well taken. If the credit was given defendant, notwithstanding the goods were delivered to Aldredge and Miller, his promise or undertaking to pay for them was original, and not within the statute of frauds, and was not required to he in writing. — Pake v. Wilson, 127 Ala| 242, 28 South. 665, and cases there cited.

Again, if Aldredge and Miller were entirely released or discharged, and the obligation or promise of defendant was substituted for theirs, the statute of frauds has no application. The new debt thus created is binding on the substituted promisor, the defendant. “It is his own debt, and can no longer be said to be the debt of another.” — Thornton v. Guice, 78 Ala. 321, and cases there cited; Carlisle v. Campbell, 76 Ala. 246.

There is clearly no merit in the next exception, taken to the oral charge of the court.

For the error pointed out, the judgment' is reversed» and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.