Warren v. Dickson

Breese, J. The principal errors assigned on this record, question the correctness of the instructions given by the court. The first instruction given for the plaintiff is as follows : “ The court instructs the jury for the plaintiffs, that if they find from the evidence in the case that the defendant called at the yard of plaintiffs for any of the lumber in the bill of items filed in this case, and that he agreed upon the prices of the lumber, and had the same selected; and that said items of lumber were charged at the time of its sale and delivery by plaintiffs to defendant, and that defendant did not then disclose the tact to plaintiffs, that he, defendant, was purchasing said lumber for and on account of W. M. Warren, then defendant became personally liable for the value of said lumber, notwithstanding they may find from the evidence in the case that defendant, at the time of the sale and delivery aforesaid, was in fact acting as the agent of W. M. Warren, in the purchase of the same.” This instruction was clearly wrong, for the plaintiffs may have known perfectly well, that the defendant was getting the lumber for another, and not on his own account. In such a case, it surely was not necessary for the defendant to disclose his agency. If the plaintiffs knew that fact, why disclose it, on receiving the lumber ? The instruction shuts out of view this consideration. We see no objection to the modification of defendant’s second instruction, nor in the refusal to give the third instruction. The statute of frauds was not pleaded, or in any shape set up, as a defense. Consequently, according to the rulings of this, and other courts, it can not be set up in the form of instructions. But though the first instruction of plaintiffs was wrong, does it follow the judgment should be reversed % The second instruction asked by plaintiff, puts the whole case fairly and squarely before the jury, and to which we see no objection, and we have been pointed to none. It is this: “ That if they find, from the evidence in the case, that the defendant admit-, ted the account sued on in this case to be correct and unpaid, and promised to pay the. same, that such admissions are sufficient evidence to entitle the plaintiffs to recover the amount of said account, unless they further find from the evidence that defendant when he made the admission, was as a fact mistaken in the facts in regard to said account.” The statute of frauds not having been pleaded and relied on, it was competent, by the defendant’s unqualified promise to pay the debt, to charge him with it. The jury have found the defendant made the admissions and promise, with a full knowledge of all the facts in regard to the account, and it ought to bind him. The testimony of James H. Dickson, relied on by the jury, fully establishes the liability growing out of an express promise to pay the account. The judgment must be affirmed. Judgment affirmed.