Norris v. Graham

Brent, J., delivered the opinion, of the Court. In'this case the appellee, who was plaintiff below, instituted proceedings in attachmenPto recover from the appellant the value of forty-five cords of wood furnished to a third party. At the trial of the short note case, the plaintiff, after the testimony was closed, offered two prayers, — both of which were granted by the Court, — and the defendant four — the first and fourth of which were granted, and the second and third refused. To this action of the Court the defendant excepted, and the questions presented on this appeal arise upon the instructions granted on behalf of the plaintiff, and the rejection of the second and third prayers of the defendant. The Court, in granting the first prayer of the plaintiff, directed the jury “that if they find from the evidence that the wood in question was furnished to Joel R. Bollinger on the credit and responsibility of the defendant, then the verdict must be for the plaintiff.” This instruction is manifestly erroneous. The plaintiff by his proof vested his right to recover upon a parol contract, and he could only succeed by showing that credit was given solely and exclusively to the defendant. If any credit was given to Bollinger, the undertaking on the part of the defendant was collateral, and being in parol, was void under the Statute of Frauds. While there is testimony in the case to establish an original undertaking by the defendant on his sole and exclusive credit, there is also testimony from which it might have been inferred that some credit was given to Bollinger, and that the responsibility of the defendant was only collateral. The credit and responsibility of a party may attach as well to his liability as security, as to his sole undertaking. When, therefore, the general term “ credit and responsibility ” is used, it may include a collateral as well as an original and exclusive liability. The instruction before us was calculated in this respect to mislead the jury, and ought not to have been granted. It should have directed them that the finding of a special and exclusive credit was necessary to entitle the plaintiff to recover, and not have [59] been so general, as to open the door to a verdict which might have been against the law of the case. (Decided 29th June, 1870.) The same fatal objection is found in the plaintiff’s second prayer, and for the reason just assigned it also was improperly granted. In other respects it is without objection. If the defendant was originally liable, his liability was not released by the act of the plaintiff in calling upon Bollinger or any other person for payment. Elder vs. Warfield, 7 H. & J., 398. The second prayer of the defendant presents only an abstract question, and could in no manner have affected the decision of this case. There was no testimony to support it, and it was therefore properly rejected. The third prayer of the defendant, upon the pleadings and evidence in the case, ought to have been granted. There is clearly a variance between the allegata and probata. The plaintiff declares for a sum of money due for wood furnished a third party on the “ credit and guaranty of the defendant.” These words plainly import a collateral undertaking, which is denied by the plea of the defendant, and which can only be evidenced by some contract in writing. The parol contract, sought to be established by the proof offered, is entirely different from the one alleged in the pleadings, and cannot be held as sufficient to authorize a recovery in an action charging the defendant as guarantor. For these errors, in granting the prayers of the plaintiff and rejecting the third prayer of the defendant, the judgment of the Court below will be reversed. As the record shows the plaintiff may recover against the defendant by a proper amendment of his short note — Neptune Ins. Co. vs. Mundell, 8 Gill, 232 — the case will be remanded for a new trial. Judgment reversed, and new trial awarded.