Champion v. Doty

Cole, J. We are of the opinion that the court erred in holding that the entries in the books were conclusive upon the question to whom the credit was originally given. The fact that the goods were charged to Sandford was a very strong circumstance to show that the credit was given to him, and that the plaintiff looked to him for payment in the first instance. But it was not conclusive upon that point, but might be explained and made entirely consistent with the assumption of the defendant’s' primary liability. Hazen v. Bearden, 4 Sneed (Tenn.), 48; Swift v. Pierce, 13 Allen, 136; Walker v. Richards, 41 N. H., 388, where this precise question is ruled. If the credit was given entirely to the defendant, or, in other words, if the sale was really made to him, then the statute of frauds does not apply, and the defendant is liable though the goods were delivered to Sandford. And the fact that the goods were charged to Sandford was competent evidence to show that the sales were made to him and upon his credit; but it was not conclusive. It was open to explanation. And the jury might have been satisfied by the explanatory evidence, that , the goods were charged on the books to Sandford merely for convenience, in [194] order to distinguish between the goods furnished to Doty for his own use and goods furnished to Sandford, and that the goods .were all sold on the credit and upon the promise of the defendant to be responsible and pay. for them. In order to recover, plaintiff must show that the goods delivered to Sandford were so delivered at the defendant’s request, and upon his absolute promise to pay for them. In this view the promise of the defendant would be an original undertaking, and Sandford would not be liable for the same debt. Hetfield v. Dow, 3 Dutcher, 440. It seems Lo us that the court erred in holding that there could be no reasonable and satisfactory explanation made why the charges in the account books were against Sand-ford, while the sale was really to the defendant and on his promise, but that the fact of the charges being so made was conclusive on the question to whom the credit was given in the first instance. For these reasons we think there must be a new trial. By the Court.— The judgment of the circuit court is reversed, and a venire de novo awarded.