Wray v. Cox

86 Miss. 638 | Miss. | 1905

Cox, J.,

delivered the opinion of the court.

This was a suit by appellant to recover of appellee balances unpaid on two open accounts for merchandise, charged to her on appellant’s books, for Henry Whitten and Anthony Bobo-. Appellee (defendant below) denied her liability therefor.

Upon the trial J. B. Wray, manager of appellant’s business, testified as follows: “Q. Who got the goods ? A. Henry Whit-ten and Anthony Bobo. Q. State how you came to furnish these goods. A. Mrs. Cox came into the store some time early .in the spring, and brought these colored men in, and asked me if I wanted1 to furnish them. Well, I knew the place they were living on, and I told her that I had had a sad experience on that place; that I had furnished hands on that place the year before, I believe it was, and never collected a nickel; they never paid the rent. Well, she told! me that she would see the account paid if I would furnish these men — keep their accounts separate, and run them as cheap and as light as I could, and she would see it paid.” He admitted having receipted Mrs. Cox in full of her account for 1902, the year he furnished the negroes, on November 15th of that year, and having receipted her again on January 29, 1904, in full of merchandise account. The 'articles furnished Whitten and Bobo were charged to them on the daybook, but were charged to Mrs. Cox, for Whitten and Bobo, respectively, on the ledger. This witness admitted that Bobo paid in person a part of the account for goods furnished him. On cross-examination he was asked: “You looked to her [Mrs. Cox] to make up whatever of this account he 'didn’t pay, did you?” To which he replied: “Yes, sir; that is the truth about it; that she was to see the account paid,” and, “if ha didn’t pay it, she would.” Bert Wray, a son of J. B. Wray, testified that Mrs. Cox told him (J. B. Wray) that she didn’t want him to take the risk, and that she would see the debt paid, and he told her that he would be glad to sell them auything on those conditions — that she would see it paid. Evidence was introduced tending to show that no trade was made with the negroes. Evidence,' which was excluded, was offered tending to show that credit was given exclusively to Mrs. Cox. On motion of defendant, all the evidence was excluded from the jury, and in obedience to a peremptory instruction the jury returned a verdict for defendant.

This action of the court was correct. The undertaking of Mrs. Cox was within paragraph “a” of the statute of frauds. Code 1892, ■§ 4225. The words “I will see it paid” import not an original, but a collateral, undertaking. The ©yidence in the case, taken as a whole, indicates clearly that Mrs. ‘Cox only guaranteed the payment of the accounts by the parties to whom the goods were furnished, and undertook to pay if they did not. She undertook to answer for the debt of another, and her undertaking, because not in writing, cannot bind her.

Affirmed.