6 Blackf. 12 | Ind. | 1841
This was au action of assumpsit brought by Bainbridge against Smith. The declaration,which was *filed in February, 1841, contains two counts. The first is special, and is to the following effect:
That, on, &c., at, &c., in consideration that the plaintiff^ at the defendant’s request, would sell and deliver to Barb and Campbell certain goods, the defendant, by a certain letter dated in November, 18-37, promised the plaintiff that he would be entirely safe in any sales he might make to said Barb and Campbell to any reasonable amount, as they wished to increase their stock on a short credit, and also promised the plaintiff that he, the defendant, would be security for the saX&Barb and Campbell, on account of such sales, until they should secure the confidence*of the plaintiff’by their ow.n punctuality, or until the plaintiff’should be otherwise directed by the defendant; that the plaintiff confiding in the said promise, &c., did, before said Barb and Campbell had secured his confidence, and before he was otherwise directed by the defendant, sell and deliver to said Barb and Campbell, on a certain credit, certain goods to increase their stock, &c., amounting to $300; that though the credit had elapsed, yet said Barb and Campbell had not, though often requested, paid, &c.; of all which the defendant, on, &c., had .notice : Yet the defendant has not paid, &c. '
The second count is a general one for goods sold and delivered.
Plea, the general issue.
The Cause was submitted to the Court. ' On the trial, Mr. Barb, of the said firm of Barb and Campbell, was offered by the plaintiff as a witness. The defendant objected to
Shortly after the date of the letter of credit described in the declaration, and which was read in evidence, Barb and Campbett delivered it to the plaintiff, who furnished them, on the credit of the letter, with goods to the amount of about $200, on ninety days’ credit. One of the firm, on bringing the goods home, informed the defendant of the plaintiff’s having furnished the goods. The greater part of that bill of goods was, some time afterwards, paid by Barb and Campbell; arid the plaintiff then furnished them with other goods, amounting to about $200, on the same terms. After the credit expirexl, which was in the spring of 1838, the plaintiff sent his clerk to Barb and Campbell to demand payment. On the demand being made, they paid a part and gave their due bill for the balance, viz., $133, dated the 12th of July, 1830. They offered then to confess judgment for that balance, and replevy the judgment, which offer the clerk refused. At that time Barb and Campbell would have secured the debt; but they have since become insolvent. No part of said balance had been paid.
The Circuit Court, on this evidence, gave judgment in favour of the plaintiff for $147 in damages.
The first question in the cause is as to the admissibility • of the witness who was objected to as incompetent. The objection, which was founded on the supposed interest of the witness was correctly overruled. If the plaintiff, who called the witness, succeeded, he could not, it is true, after-wards sue the witness for the same demand. But the defendant, having been obliged to pay the debt as the witness’ guarantor, could sue the witness for the amount thus paid for him together with the'costs of suit. The determination of the cause, therefore, in the plaintiff’s favour, instead of benefiting the witness would be an injury to him.
.The next question relates to the nature of the contract on which the suit is founded. The plaintiff in error considers
We think the legal construction of the contract proved in this case is as the plaintiff in error understands it. Letters of credit, to be sure, frequently state, in express terms, that if the third party do not pay, the writer will. But the insertion or omission of such statement is not the test by which to determine-the character of the contract. If the writer state that he will guaranty the payment of goods to be afterwards sold to another, or that he will see the goods paid for, or that he will be security for their payment, the promise is only collateral. The purchaser, under these circumstances, for whose use the goods are furnished, is himself liable in the first instance, and it is only after his default that the surety ^becomes liable. Chitt. on Contr., 397, et seq. Here, Barb and Camp bell bought and received the goods for their own use, and the plaintiff looked to them in the first instance, as he Was bound to do, for payment. They were answerable, as the principal debtors, on a general count for goods sold and delivered; but the defendant, as their guarantor or surety, is only liable in a suit founded on the special contract. Mines v. Sculthorpe, 2 Camp., 215.
Another question in the cause is, whether the evidence supports the special count?
It appears that in July, 1839, the plaintiff demanded payment of Barb and Campbell of the amount then due on the sales with which the guarantee was connected. They paid a part and gave a due bill, as it is called, for the balance. But no notice of this demand and non-payment, or of the amount due, was ever given to the defendant. In February, 1841, which was eighteen months after the debt was due and demanded, this suit was commenced. The
There is another point as respects the evidence which it may be proper to notice. There is proof, that when the demand of payment was made on Barb and Campbell, they were able and willing to secure the debt, but that they after-wards became insolvent. It is decided that if a person, not the payee, indorse a note before its delivery with the words “ 1 guaranty the payment of the within note,” the promise is collateral, the guarantor not being liable in the first in
Per Curiam.—The judgment is reversed, with costs. Cause remanded, &c.