Hasty Mercantile Co. v. Bryant

*553 ClabksoN, J. There is only a single legal question involved in this case: Do the allegations of the complaint, on a trial of this cause, if proven to be true, constitute a good cause of action and entitle plaintiff to recover of the defendant? We are of the opinion that the allegations in the complaint constitute a good cause of action. The defendant relies on the statute of frauds, as follows: “No action shall, be brought whereby to charge an executor, administrator or collector upon a special promise to answer out of his own estate or to charge any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party charged therewith or some other person thereunto by him lawfully authorized.” C. S., 987. We do not think the statute applicable, if the facts are proven as alleged in the complaint. It is well settled that if “A. is indebted to 33. and puts money in the hands of 0. to pay B., then B. may sue C. for money had and received.” In the case of Threadgill v. McLendon, 76 N. C., 24, similar in many respects to the instant case, Threadgill, the plaintiff, was the merchant, and the debt was contracted by the tenant of McLendon, for fertilizer and supplies which were furnished the tenant. In that case, the court below charged the jury “If they should find that the defendant received cotton enough to pay himself and to leave a balance, and. that, having so received the cotton, promised the plaintiff to pay the tenant’s account, the plaintiff would be entitled to recover to an amount sufficient to pay said account; otherwise the defendant would not be liable.” In that case Pearson, J., said 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— cotton being a cash article and convertible at pleasure into money.” The same judge, in Stanly v. Hendricks, 35 N. C., 87, says: “The principle is this: When, in consideration of a promise to pay the debt of another, the defendant receives property, and realizes the proceeds, the promise is not within the mischief provided against, and the plaintiff may recover on the promise, or in an action for money had and received. For, although the promise is, in words, to pay the debt of another, and the performance of it discharges that debt, still the consideration was not for the benefit or ease of the original debtor, but for a purpose entirely collateral, so as to create an original and distinct cause of action.” Hall v. Robinson, 30 N. C., 56; Draughan v. Bunting, 31 N. C., 10; Mason v. Wilson, 84 N. C., 51; Whitehurst v. Hyman, 90 N. C., 490; Voorhees v. Porter, 134 N. C., 604; Deaver v. Deaver, 137 N. C., 244; Jenkins v. Holley, 140 N. C., 380; Satterfield *554 v. Kindley, 144 N. C., 461; Dale v. Lumber Co., 152 N. C., 654; Peele v. Powell, 156 N. C., 557; Whitehurst v. Padgett, 157 N. C., 428; Parker v. Daniels, 159 N. C., 518; Craig v. Stewart, 163 N. C., 533; Handle Co. v. Plumbing Co., 171 N. C., 502; Bush v. McPherson, 176 N. C., 567; Deal v. Wilson, 178 N. C., 605; Rector v. Lyda, 180 N. C., 578. See cases at this term: Parlier v. Miller, ante, 501; Way v. Transportation & Storage Co., ante, 224. Applying the law to the facts in this case, we are of the opinion that the court below erred in ruling out the evidence and granting the non-suit. Reversed.