Bonner & Marshall Co. v. Hansell

Mr. Presiding Justice Fitch delivered the opinion of the court. The main contentions of appellant upon this appeal may be stated as follows: Appellee’s statement of claim sets up an original undertaking, while the evidence shows only a collateral promise on the part of appellant, through his agent Pray, to answer for the debt of Cox Brothers; that appellant is not liable in this action upon the promise of Pray, first, because there is a variance between the allegations and the proofs; second, because Pray had no authority to make such a promise on behalf of appellant; and third, because the promise of Pray, even if made by him and authorized by appellant, was but an oral promise to answer for the debt of Cox Brothers, and therefore void, under the statute of frauds. It is well settled that the portion of the statute of frauds which is relied on by appellant has reference only to collateral undertakings to answer for the debt or default of another. “Where the agreement is original and independent, it is not within the statute; if collateral, it is.” Resseter v. Waterman, 151 Ill. 169; Lusk v. Throop, 189 Ill. 127. The terms “original promise” and “collateral promise” are not used in the statute, but have been adopted by the courts as a convenient method of expressing the distinction between cases in which the direct and leading object of the promise is to promote some interest or purpose of the promisor, and cases in which the main purpose of the promise is to assume or guaranty the debt of another. Smith on the Law of Fraud, sec. 317. In any case within the former class, the promise is original and is good whether oral or in writing, even though the effect may be to. release or suspend the debt of another. In any case within the latter class, the promise is collateral to the obligation of another, and is void by the terms of the statute unless it, or some note or memorandum of it, is in writing and signed by the party to be charged therewith. In Stone v. Walker, 79 Mass. 613, Mr. Chief Justice Shaw illustrates this distinction as follows: “If the promise is made by one in his own name to pay for goods or money delivered to, or services done for another, that is original; it is his own contract on good consideration, and is called original, and is binding on him without writing. But if the language is ‘Let him have money or goods, or do service for him, and I will see you paid,’ or ‘I promise you that he will pay,’ or ‘If he do not pay, I will,’ this is collateral, and, though made on good consideration, it is void by the statute of frauds.” This statement of general principles is subject, however, to the qualification that the use of any particular set of words is not, of itself, necessarily controlling. “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.” Blank v. Dreher, 25 Ill. 331. In determining this question, one of the recognized tests is whether the credit is given to the person sought to be charged, or to someone else. Geary v. O’Neil, 73 Ill. 593; Schoenfeld v. Brown, 78 Ill. 487. Where the price of goods sold and delivered is charged upon the seller’s books to the person to whom they are delivered, that fact, if unexplained by other circumstances, is generally considered as strong evidence going to show that credit was given to such person; Lusk v. Throop, supra. “If one has a claim against another, and keeps books, it will so appear on the .books, and it will require very strong evidence to show the entry was made by mistake.” Hardman v. Bradley, 85 Ill. 162. Such evidence is not conclusive, however. It may be rebutted or explained, and therefore the whole question becomes a question of fact to be determined by the jury from all the circumstances, under proper instructions. Lusk v. Throop, supra; Ruggles v. Gatton, 50 Ill. 412. In this case, it was admitted that appellee did not enter upon its books of account any charge against appellant for the price of the brick that were delivered. It charged the price of the brick directly to Cox Brothers. A copy of appellee’s ledger account was offered in evidence and shows that the items charged for brick furnished to appellant were charged to the account of Cox Brothers in precisely the same manner as other sales, previously made by appellee to Cox Brothers, were charged. • No attempt was made to rebut the inference naturally arising from this .fact, ' and this evidence, unexplained, tends strongly to prove that at the time of the delivery of the brick, appellee did not consider appellant as primarily its debtor, but intended to collect its claim from Cox Brothers if it could, and regarded the promise of Pray as a guaranty only. The special findings of the jury show that the jury took this view of the matter, and in our opinion, this is the only- reasonable conclusion from all the facts and circumstances in evidence. This being so, it must be held that the promise of Pray, on behalf of appellant, “to see that the account was paid,” or “to guarantee the account,” was a collateral undertaking to answer for the debt or default of Cox Brothers. It was not essential, however, to the validity of this promise, that the promise itself should be in writing. It was sufficient, under the statute, that the promise be evidenced by “some note or memorandum thereof” in writing, signed by appellant. We think that appellant’s letter of November 13, 1911, was a sufficient “note or memorandum” in writing to meet this requirement of the statute. We are also of the opinion that the same letter, when read in connection with the letter of November 11, 1911, clearly shows that Pray had full authority to make the promise in question for and on behalf of appellant. Appellant’s letter of November 13, 1911, refers specifically to appellee’s claim “against Cox Brothers for material delivered to them for my building.” It is addressed to appellee and states that, “your claim will be fully protected,” that Pray “has full charge and is paying out all the bills,” and that “he will take care of and protect you.” Bearing in mind that this letter was written in reply to a letter from appellee in which, notwithstanding the promise of Pray, which is mentioned in the letter, appellee insists upon some assurance from appellant himself regarding the matter, and asks for his personal guaranty, there does not seem to be any reasonable doubt that appellant, with full knowledge of all the facts, intended by his letter to ratify, approve and confirm all that Pray had done and promised to do on his behalf. These conclusions bring us naturally to the only part of appellant’s contention that, in our judgment, presents any serious difficulty, viz.: Is there a variance between the plaintiff’s statement of claim and the proofs, and is appellant in a position to urge that objection? It will be noticed that the statement of claim says, in effect, that when Cox Brothers first ordered appellee to deliver the brick in question to appellant (which was “on or about August 1, 1911”) appellee “then and there refused to deliver the said brick on the credit of said Cox Brothers.” The statement of claim does not, however, allege that appellee persisted in its refusal after the promise of Pray was made. On the contrary, the next averment of the statement of claim is that “on or about August 7, 1911” (seven days later), Frank M. Pray, as the agent for appellant, “agreed with the plaintiff to see that the plaintiff would be paid for all brick so delivered and to be delivered as aforesaid,” and “that relying on said promises, the plaintiff delivered to said Cox Brothers on their order, 60,000 brick at $22 per M.” This is not an averment of an absolute promise on the part of appellant to pay for the brick, but amounts to an allegation that the plaintiff was induced, by the promise of appellant’s agent, to withdraw its refusal and to deliver the brick to Cox Brothers on their order, that is, to extend credit to them in reliance upon appellant’s collateral promise “to see the plaintiff paid” for all brick ordered by them. Under this construction of the statement of claim, there is no variance between its allegations and the proofs. This was the construction placed upon the statement of claim by appellant himself in his pleadings; for in his affidavit of merits (which, in the Municipal Court, takes the place of a plea), appellant states “that the said alleged agreement in said amended statement of claim is a promise to answer for the debt, default, or miscarriage of another, to-wit: Cox Brothers, and that the said alleged agreement is not evidenced by a writing as required by statute.” Manifestly, this defense is wholly inapplicable if, as appellant now contends, the statement of claim sets up an original undertaking instead of a collateral promise to answer for the debt of another. Furthermore, even if it could be held that the statement of claim is a statement of an original promise, we think that appellant is not in a position to raise the question of .variance in this court, for the reason that the alleged variance was not specifically pointed out in the trial court, where the statement of claim could have been amended. It is true that at the close of the plaintiff’s evidence, appellant made a motion to instruct the jury to find the issues for the defendant, upon the ground “that the evidence shows that there was no original undertaking, but a collateral undertaking, void under the statute of frauds but there is no reference in this motion to the statement of claim. If appellant’s counsel intended by this language to call the attention of the court and opposing counsel to the alleged variance between the statement of claim and the evidence, they were unfortunate in the choice of words by which they expressed that intention. A reading of the record convinces us that the trial court did not so understand the motion, and did not, in fact, rule on any question of variance. An objection of that character must be presented to the trial court in more unmistakable terms than the motion made in this case, so that, if necessary, the proper amendment to the pleadings may be made. It is urged that the court erred in refusing to permit appellant to show that the word “protect” had a “particular meaning” among architects and material men. We think there was no error in this ruling. The two November letters, taken together, leave no room to doubt what the parties themselves meant by the word “protect,” and it was therefore not material whether it had a different meaning as generally used by architects and material men. Furthermore, when the objection to the question was sustained no offer was made to prove by the architect that the word has a special meaning among architects and material men which is different from the ordinary well-understood meaning of the word itself. Nor do we think there was any error in permitting the plaintiff’s witnesses to testify to admissions made by the architect after the November letters were written. No payment had been made up to that time, and Pray was still acting as appellant’s agent. We think the evidence was admissible as part of the res gestae. The contention that the court erred in refusing to permit alleged impeaching evidence to be introduced is also without merit. The witnesses who were sought to be impeached admitted that they had testified upon the former trial as was claimed, and there was therefore nothing to impeach. Moreover, the form in which the impeaching questions were put to the stenographers who reported the former trial was clearly improper. As to the alleged error in admitting a copy of the letter of November 11, 1911, the objection that no notice to produce the original had been shown, was not made at the time, and cannot be made here for the first time. Finding no reversible error in the record, the judgment of the Municipal Court will be affirmed. Affirmed.