Perkins v. Hinsdale

Hoar, J. The evidence was very strong that the contract of the defendants was a collateral undertaking, and so within the statute of frauds; and would have fully warranted such a finding by the jury. But the plaintiff in one part of his testimony expressly stated that the sole credit was given by him to the defendants, and none to Charles F. Hinsdale ; and the letter written by one of the defendants to Mr. Beach, the attorney, has some semblance of an admission of an original and direct responsibility. Considering, therefore, that the evidence was 160 chiefly oral, not absolutely distinct in its terms, or consistent in its different parts ; and that its effect depends partly upon inferences to be drawn from it; we think, on the whole, that it should have been submitted to the jury under proper instructions, to determine the question what the contract was, as a question of fact, and that the court should not have decided it. Thruston v. Thornton, 1 Cush. 89. Exceptions sustained.