Worthington v. . Jolly

*267 BeowN, J. Tbis action is brought to recover $82.02 for goods alleged to have been sold and delivered to one Summerell, at request of defendant. The plaintiff put in evidence a verified account, under the statute, which, was objected to by defendant. The person who verified it was "Worthington, a member of the firm. We do not think it comes within the objection stated in Nall v. Kelly, 169 N. C., 717, but rather that it is supported by that ease, so far as its regularity is concerned. But we think the judge should have confined the account strictly to prima facie evidence of the delivery of the -goods to Summerell. At the beginning of the account is written, “Titus Jolly responsible.” The account is not competent evidence of Jolly’s responsibility, and those words should be stricken out and not permitted to go to the jury. They are well calculated to influence and possibly mislead the jury in their verdict. In respect to the charge of the court, we think the assignments of error are well laid. The learned judge below did not explain to the jury the statute of frauds and what effect it has upon the controversy. The liability of defendant appears to have been made to depend upon whether he agreed to pay for all goods furnished Summerell. Defendant may have so agreed, and then not be liable, as such alleged agreement was not in writing. In order to hold the defendant upon a verbal promise, it must be found that he was an original promissor and was not a mere surety — in fact, that he purchased the goods practically on his own account and directed their delivery to Summerell. The law is well stated in Peel v. Powell, 156 N. C., 553, as follows: “The obligation of a promissor to answer for the 'debt, default, or mis-earrige of another’ is original and binding if made at the time or before the debt is created, when the credit is given solely to the promissor, or to both.” The evidence upon this phase of the case is conflicting, and the court should have stated the evidence and contentions of both parties and let the jury determine whether it was the intention of both plaintiff and defendant that the latter should become the responsible debtor upon whose verbal request the goods were delivered, or did he promise solely as surety for Summerell. In the latter event there must be written evidence of the promise. New trial.