Chism Bros. v. Alcorn

Cooper, J., delivered the opinion of the court. We infer from the briefs of counsel that the court below gave the general charge for the defendant on the ground [508] that plaintiffs were attempting to charge her to answer for the debt of another upon a mere verbal promise made by her through her agent, Mr. Alcorn. ¥e do not see that the statute of frauds has any application. The plaintiffs testified in their own behalf, and positively denied that Mrs. Alcorn, either through her agent or personally, ever agreed to be bound for the payment of the account on which the suit is brought. Their cause of action, as stated by them, is not that she promised to pay and has neglected and refused so to do, but that she agreed to waive her lien, as landlord, upon the crops of Bush, her tenant, and that Bush might apply it to the payment of his account, and afterwards, in violation of that agreement, received the cotton grown by Bush and appropriated its proceeds to her demand for rent. If they had sued for money had and received to their use, or in an action on the case, their testimony would have tended to support their action. This they did not do, but sued both Mrs. Alcorn and Bush, the tenant, on the open account for goods, wares and merchandise sold and delivered to Bush. If the truth be, as the plaintiffs testified, that Mrs. Alcorn never promised, in writing or verbally, to pay this account, the statute of frauds can cut no figure in the case. The difficulty is that the plaintiffs sued on the account for which, in evidence, they show that Mrs. Alcorn was not at all bound, and seek to recover for the breach of another distinct agreement, viz., that Bush’s crop should be first applied to the payment of the account. The peremptory instruction was properly given. Affirmed.