Blank v. Dreher

Breese, J. Whether an undertaking is original or collateral merely, is to be determined, not from the particular words used, but from all the circumstances attending the transaction. Both the terms of this contract, and the circumstances of the transaction, show to our minds quite conclusively, that Blank’s undertaking was collateral only. The proof shows the brick were bought by Blank for one Cunningham, of Salem, Marion county, and so known to the sellers, Blank saying that he “ would be good for them, if Cunningham did not pay in thirty days.” The brick were forwarded to Cunningham and received by him. This was clearly a collateral undertaking by Blank, and to bind him, should have been in writing. Cunningham was liable the moment the brick were delivered to him in Salem. The judgment is reversed. Judgment reversed.