Clark v. Jones

• Decision Date: 19 June 1889
• Citation: 6 So. 362,87 Ala. 474
• Parties: CLARK v. JONES ET AL.
• Court: Alabama Supreme Court

6 So. 362

87 Ala. 474

CLARK v. JONES ET AL.

Supreme Court of Alabama

June 19, 1889

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

This action was brought by William B. Jones & Bro. against Henry W. Clark, on an account stated. Issue was joined on the pleas of the general issue, statute of frauds, and payment. There was judgment for plaintiffs, and defendant appeals.

Tompkins, London & Troy, for appellant.

Watts & Son, for appellees.

CLOPTON J.

The instructions of the court based the liability of defendant for the price of the goods to recover which appellees bring this action, on two hypotheses: First, as the real and sole purchaser; second, as a member of a partnership for whom the goods were bought. As to the first ground of liability, the contestation is whether the promise of the defendant to pay for the goods comes within the provision of the statute of frauds relating to "every special promise to answer for the debt, default, or miscarriage of another." In solving this question the main and decisive inquiry is, was the promise original and absolute or collateral and conditional? As the plaintiffs seek by the action to charge the defendant with the price of the goods delivered to the Wetumpka Lumber Company, the rule applicable, and which must govern, may be thus stated: If the goods were sold on the sole credit of the defendant, his promise is original, and without the statute; but if any credit was given to the company, who received the goods, the promise is collateral, and within the statute. In the latter case it is immaterial to which party the credit was principally given. Boykin v. Dohlonde, 37 Ala. 577. To bring such promise within the operation of the statute there must be concurrent liabilities, each of which is capable of being enforced.

The evidence on the part of the plaintiffs tends to show that on application being made by defendant to obtain goods for the company they refused to sell on the company's credit, but proposed to let the company have the goods on the defendant's credit, to which he agreed. On cross-examination of one of the plaintiffs it was brought out that at the time defendant applied to get the goods they agreed for all goods not paid for by the acceptance of McEachin, which defendant proposed to turn over to them, to take, at the expiration of 30 days, the company's acceptance with defendant's indorsement. In his testimony the defendant denies that he offered directly or indirectly to become responsible for the goods; but did not otherwise contradict the evidence on behalf of plaintiffs as to what occurred at the time. There is an absence of evidence that the company made at the time or previously application to procure the goods, or assumed any liability therefor other than the application and promise of defendant. Taking and considering all the words used, it is apparent that they are susceptible of two meanings,-one importing a collateral undertaking to indorse the company's acceptance to which the statute applies; the other, an original and independent promise to pay for the goods, with an understanding or agreement that plaintiffs would take at the expiration of 30 days, in lieu thereof, the company's acceptance, with defendant's indorsement,-a novation of the primary promise, which takes the statute out of the case. When the words employed are susceptible of two meanings, the question must necessarily be submitted to the jury to determine in which sense they were used and understood. Throop, Verb. Agr § 180. The mere fact that the goods were charged to the company on the books of plaintiffs in the manner shown is not conclusive that any credit was given to the company. The manner in which the account was entered on the books is consistent with the intention of defendant to bind himself as the real purchaser, especially when it appears from the uncontradicted evidence that they were so charged by his request, and for his accommodation. The same...