Walker v. Moors

| Mass. | Sep 5, 1878

Lord, J.

The question in this case is, which one of the two parties actually purchased the three furnaces which the plaintiffs sold, and the price of which they seek to recover in this action. There is involved in it no question of original or collateral liability. When that is the question, and the defendant denies his liability, upon the ground that his engagement is a collateral engagement, and therefore necessary to be in writing to obviate the objection of the statute of frauds, it is a material inquiry whether any credit whatever was given to the party to whose promise the defendant’s promise is claimed to be collateral; foi if any credit whatever was thus given, the defendant’s engagement would be collateral and not original. In this case, the sale was made, not by the plaintiff himself, but by Rice, who was his agent and who testified to the facts in relation to the sale. The plaintiff had no interview with the defendant before the sale; and all the knowledge which he had upon the subject was derived from the statements made to him by Rice; and the fact that be delivered the goods upon Rice’s statement was a competent fact; but upon whose credit he delivered them was not only an immaterial fact, which he could have determined only by his own construction of the language which Rice communicated to him, and incompetent, but was one which was calculated to mislead and bias the jury. Rice was bound to report to him the exact interview which he had with the defendant. If those facts created the relation of purchaser and seller between the parties, he was justified in making the delivery and claiming the price of the defendant. But his statement, that he delivered the goods upon the credit of the defendant, is merely another mode of giving his construction to language which might or might not have been sufficient to create a contract between the parties, which, under no circumstances, could be competent evidence. The language, as testified to by Rice at the trial, is claimed by the defendant to have been, if not equivocal and uncertain, insufficient to show that the defendant entered into the contract, and the plaintiffs’ interpretation of that language in the absence of the defendant could only tend to his prejudice. The exception to the admission of that testimony must therefore be sustained.

A further exception is taken to the instruction of the court in. relation to the legal effect of a certain agreement entered into between the defendant and one Meserve. Inasmuch as that question was raised under somewhat peculiar circumstances, and as it is not probable that in a future trial the question will again arise anl be passed upon in the same language, particular criticism of the language used by the presiding judge in his construction of that contract is unnecessary. It appeared in the course of the trial that at one time a bill of these furnaces was made to Meserve, and we think that the plaintiffs were properly allowed to give their explanation of the circumstances under which the bill was thus made; and, tnough it is quite apparent that the bill of exceptions contains a misprint in using the word “ Moors ” for “ Meserve,” we see no objection to the question ai answer of the witness, so far as it was simply applicable to and in explanation of the bill thus made.

Exceptions sustained.