Greene v. Burton

The opinion of the court was delivered by Veazey, J. We think the findings of the auditor should be construed as equivalent to the finding expressly of an original [425] undertaking on the part of Burton. Previous to his promise the plaintiffs had furnished the ‘ ‘ shirt company or factory ” labor and materials on the credit of MacDonald, who was the proprietor of the business under the name of the Glens Falls Shirt Company, but had then refused to furnish any more on his account or credit. Burton and Sowles were interested in the business by reason of their loans to MacDonald and the character of their security therefor, and had an agent in and about the establishment to look after the business in their behalf. When this agent brought the fact of the plaintiffs’ said refusal to the attention of Burton he told one of the plaintiffs to furnish labor and material, “as the factory must be kept rumring,” and that their'said agent, Hall, “ would order what, was -wanted, and that Burton and Sowles would see that they had their pay for the same.” Thereupon the goods and labor charged, as shown in the plaintiffs’ specifications, were furnished by the plaintiffs upon the order of Hall and upon the credit of Burton and Sowles. The expression, “ would see that they had their pay,” implies a collateral promise; but if this form of expression was intended and understood as a promise to pay directly and not conditionally, it should be so treated. The substance and not the form should control. We think the facts and circumstances reported show that the promissee had the right to’ and did understand that the further labor and material to be furnished should become the debt directly and not collaterally against Burton and Sowles, and that Burton so intended. The person’s name in the account on the books often has controlling influence in deciding the fact as to the person who is regarded as the original debtor, but it is not conclusive; and in this case, if the charges were not to Burton and Sowles as first made, which does not clearly appear, we think but little importance should be attached to it under the other facts reported. The Statute of Frauds, therefore, is not available to the defendants. [426] But there is the further question whether Sowles is bound by Burton’s promise. In the case of Smith v. Burton and Sowles, ante, 408, we held that the contracts with MacDonald did not create a partnership between Burton and Sowles or make them the proprietors of the business ; and did not create an authority on the part of either to pledge the credit of the other, in the performance of their contract obligations to MacDonald. The contracts were severally signed by them, and in many respects point to a several obligation on the part of Burton and Sowles. In the case at bar, unlike the other, there is nothing in the report to indicate any authority by Sowles to Burton, outside ■the contracts, to pledge the credit of Sowles to the plaintiffs. It does not appear in the report that Sowles knew of any dealings with the plaintiffs by either MacDonald or Burton. And there is nothing to show any course of dealing indicating any authority for each to act for the other. Therefore the judgment for the plaintiffs as against Burton is affirmed, but as against Sowles is reversed, with costs.