Jackson v. Pool

McHaNey, J. Appellee sued appellant to recover judgment for $115 on a board bill of one Bill Herring-ton, in which she claimed that appellant promised to pay the bill if she would furnish him room and board. Appellant defended on the statute of frauds which requires the contract of one to answer for the debt, default or miscarriage of another to be in writing. At tbe conclusion of tbe testimony, be moved for a directed verdict wbicb was overruled. Tbe case was submitted to a jury wbicb resulted in a verdict and judgment in appellee’s favor for tbe amount sued' for, with interest and costs. Tbe case is bere on appeal. It is true, as appellant says, that this court has held in a long line of decisions beginning with tbe case of Kurtz v. Adams, 12 Ark. 174, that “where there is no previously existing debt, or other liability, but the promise of one is tbe inducement to and ground of the credit given to another, by which a debt or liability is executed, such a promise is a collateral undertaking; the general rule being that wherever tbe party undertaken for is originally liable on the same contract, the promise to answer for that liability is a collateral promise and must be in writing. As, if B gives credit to C for goods sold and delivered to him on the promise of A to see him paid or to pay him if C should not, in that case it is •the immediate debt of 'C for which an action would lie against him, and the promise of A is a collateral undertaking to pay that debt, he being liable only as security. ’ ’ Swaboda v. Throgmorton-Bruce Co., 88 Ark. 592, 115 S. W. 380; Smith v. Westlake, 152 Ark. 384, 238 S. W. 34; Grady v. Dierks Lumber & Coal Co., 154 Ark. 255, 242 S. W. 548, In this case, there was no pre-existing indebtedness from said Herrington to appellee. She testified very positively that she permitted said Herrington to board and room at her house on the credit of appellant; that appellant agreed with her to pay Herring-ton’s hoard, and that she charged Herrington’s board to appellant. These facts were disputed by appellant, and the court submitted the question to a jury, and the jury has chosen to believe appellee’s testimony instead of appellant. If appellee was telling the truth, and we assume that she was, under the jury’s verdict, then appellant’s undertaking was not a collateral one, and the judgment was properly rendered against him. No error appearing, the judgment is affirmed.