Myer v. Grafflin

Miller, J., delivered the opinion of the Court. There is no difficulty about the construction of the part of the fourth section of the Statute of Erauds relied on by the appellee as. a defence to this action. That is clearly [355] settled by tbe case of Elder vs. Warfield, 7 H. & J., 391, which has been followed and approved by all the subsequent decisions in this State upon the same subject. To ascertain whether the defendant’s undertaking was collateral or original, the point of inquiry in the case before us is, to whom was the credit given at the time of the sale and delivery of the goods, and we are clearly of opinion the Court below erred in taking from the jury the determination of this question by granting the defendant’s first prayer. The refusal of a similar instruction in Elder vs. Warfield was affirmed by this Court upon evidence less favorable to the plaintiff, and the defendant’s counsel has conceded the granting of his prayer would have been erroneous, but for the decision in Cropper vs. Pittman, 13 Md., 190. There is not only no conflict between the two decisions, but the latter expressly recognizes and adopts the former. The doctrine of both, as well as of Connolly vs. Kettlewell, 1 Gill, 260, is that where credit is given to one on the promise of a third party “ to see-him paid,” the undertaking of the latter is collateral and void under the Statute, unless in writing, and where the party undertaken for is originally liable on the same contract, the promise to answer for that liability is a collateral and not an original undertaking, unless there is a new and superadded consideration moving between the-party promising and him to whom the promise is made. But it is conceded in Cropper vs. Pittman that it does not follow in every case where the words “ I will see the bill paid” are used, they necessarily import a collateral undertaking. If accompanied by other words or facts sufficient to authorize a jury to find from all the evidence that credit was given to the party using them and the jury so find, he will be held responsible. It is decided in Cropper vs. Pittman, following in this respect Connolly vs. Kettlewell, that such words standing alone import a collateral undertaking, [356] and the jury must be so instructed as to their legal effect. In that case the defendant introduced his brother to the plaintiff, saying, his brother intended to go into business in Virginia, and wished to purchase a bill of goods, and said “ he would see the bill paid.” The brother then selected a bill of goods and they were put aside, but before delivery the plaintiff’s clerk went to the defendant and asked him if he would accept a draft for the bill if the plaintiff would give two months’ extra time. This proposition the defendant declined, but said he would see the bill paid, as he expected his brother would consign produce to him in three months, and he would appropriate the amount to pay the bill, and again remarked “ he would see the bill paid if his brother purchased the goods of the plaintiff.” When this conversation w'as reported to the plaintiff, the goods w;ere delivered to the brother, and charged to him on the plaintiff’s books; and there was also proof tending to show the plaintiff at the time took the brother’s bond or note for the bill of goods thus purchased. Upon this evidence the Court say they could not doubt that the brother was liable for the goods delivered to him,' or that the plaintiff considered him as debtor for them; that they were selected by and charged to him, and there was nothing to show he was not credited by the plaintiff. Hence the case was such that the Court could see the evidence was not legally sufficient to charge the defendant as upon an original undertaking not collateral to the liability of another, and therefore said there was no propriety in sending the parties to a jury. But in the present case the evidence is essentially different. According to the testimony of Myer, one of the plaintiffs, there is positive proof that the plaintiffs in the sale of the goods in question looked alone to the defendant for payment, and that the goods were in fact sold to him. From all the testimony of this witness, if believed by them, the [357] jury were at liberty to find the credit at the time of sale and delivery of the goods was given to the defendant, and that there was no credit given to, or original liability on the part of, either Spear or- Pratt therefor. The fact that Spear was debited with the goods on the books of the plaintiffs is not, as was decided in Elder vs. Warfield, conclusive evidence that the credit was given to him, but only a circumstance, strong it is true, to be submitted with all the other evidence in the cause to the jury. (Decided 27th October, 1869.) Judgment reversed, and procedendo awarded.