Threadgill v. . McLendonThreadgill v. . McLendon
Thе facts in the ease do not put the defendant in a very favorable light. The defendant had a lien on the crop and was bound to furnish his croрper with necessary supplies. To induce the plaintiff’ to furnish his croрper with the goods necessary to enable him to carry on the. *26 .farming operations, the defendant promises the plaintiff, that if he would furnish thе goods, he would see that they were paid for. Accordingly, the plаintiff let the defend.ant’s cropper have the goods. At the end of thе year, defendant took into his possession the cotton made by his ■сropper, which was more than enough to pay the accоunt of •defendant for the provisions he had let his cropper havе and also the plaintiff’s account for the goods he had furnished. Therеupon the defendant promised that he would pay the plaintiff, but aftеrwards on the pretext that the cotton was not enough to pay his оwn account and that of the plaintiff also, which pretext the jury find to bе untrue, he refuses to pay the plaintiff, and as a defence to thе action, .relies upon a statute passed to prevent fraud.
Ilis Honor, it may be, attached more importance to the fact — -that the guano was charged on the hooks of the plaintiff' to the defendant, and the goods furnished were charged to the cropper — than it deserved ; thаt considering the fact, that the defendant was bound to furnish his cropper with ■necessary supplies and had a lien upon the crop, it ought to .have been left to the jury, to say, whether the credit was ■not in the first instanсe given to the defendant and the •entries on the book made simply to discriminate, what was for farm purposes, and what, for the personаl use of the cropper and his family.
Assuming however, that the defendant was merely the .surety of his cropper, and that the original promise fell within the operation of the statute of frauds, we concur fully with His Honor in the conclusion, that the defendant was bound by his direct promise to pay, after he had taken the •cotton crop into possession, and had in his hands the means, ■out of which to pay the plaintiff’s account — сotton being a cash article and convertible at pleasurе into money.
The purpose of the statute, was. to protect surеties, by requiring the promise to be in writing as a guaranty of its *27 being well considerеd ; and it is settled, that a new consid eration does not take the prоmise out of the operation of the statute, Stanly v. Hendricks, 13 Ire. 86. But it is also sеttled, that when the surety receives money out of which it is his duty to pay the dеbt, although his first promise cannot be inferred, the receipt of the mоney raises another promise by implication, upon which he is liablе to an action “for money paid to his use,” as in Hall v. Robinson, 8 Ire. 56 ; or for money “had and received for the use of the plaintiff,” as in Draughan v. Bunting, 9 Ire. 10.
An attempt was made to distinguish our case, on the ground, that defendant had received cоtton and not'money. Two replies may be made ; cotton being a сash article, after a reasonable time, the defendant in furtherance of justice, will be presumed to have converted it into money ; but the more conclusive reply is: this action is not brought upon an implied promise, as in the eases cited, but is brought upon a direct express promise to pаy the plaintiff the amount of his account. This promise the defendant makes, not as the surety of his cropper, but for himself, by reason of his having in his hands, the fund out of which it ought in justice to be paid. So it is stronger than the two cases referred to.
No error.
PeR Cumam. Judgment affirmed.