Appeal
from Common Pleas Circuit Court of Richland County; D. E
Hydrick, Judge.
GARY
A. J.
This is
an action on an open account for goods sold and delivered.
The defendant denied the allegations of the complaint, and
set up as a defense that any promise he may have made was to
pay the debt of another, and, as it was not in writing, that
it was void under the statute of frauds. The jury rendered a
verdict in favor of the plaintiff for $266.90, and the
defendant appealed.
The
main question in the case is whether the promise of the
defendant was void under the statute of frauds. The
appellant's attorneys contend that the complaint set
forth a cause of action upon the guaranty of the defendant to
pay the debt of another person, while the respondent's
attorney submits that the allegations of the complaint are
appropriate to an action upon an original undertaking. It will be necessary, therefore, to construe the
complaint, the material allegations of which are as follows
"(1) That heretofore, on or about the 8th day of
October, 1907, the defendant, Howard Caldwell, came
in company with one Furman Hall, into the store of the
plaintiff, and represented that the said defendant and
the said Furman Hall were in the lumber business
together at Pelion, S. C., and that Mr. Hall needed
corn, oats, and meal and other supplies for his mules and
other stock, which were being used in the said business;
that the said Howard Caldwell then and there
requested the plaintiff to let the said Furman Hall have
such supplies as he required, and that he, the said
defendant, would guarantee the payment of such goods so sold;
that he, the said defendant, would pay the bills at his
office in Columbia, and that it would not be necessary to
present such bills of payment at Pelion, S. C. (2) That
thereupon the said plaintiff considered the proposition of
the defendant, and, upon the faith and credit of his
guarantee to pay for and be responsible for such goods as may
be sold to the said Furman Hall, agreed to sell the goods
desired upon the terms above stated; that accordingly the
plaintiff, at the request of the said Furman Hall and the
said Howard Caldwell, sold and delivered to the said
Furman Hall between the 8th day of October, 1907, and the
16th day of November, 1907, certain goods, wares, and
merchandise, as shown by the itemized statement hereto
annexed, and made a part of this complaint, for which the
said Howard Caldwell agreed to pay the sum of
$348.60, and that the said goods so sold and delivered were
reasonably worth the said amount; that a part of the said
goods were sold upon the individual order of the
defendant for Furman Hall, as indicated in the said
bill, and the remainder were sold upon the request of the
said Furman Hall; and that all of the said goods were charged
on the books of this plaintiff, as indicated on the bill
hereto attached, and were sold to said Furman Hall,
guaranteed by said defendant, and solely upon
the faith and credit of such guarantee. (3) That on the
16th day of November, 1907, the said defendant paid
to the plaintiff on account of said indebtedness by his check
or check of Howard Caldwell & Co. the sum of $81.70,
and that there is now due and owing by the said defendant to
the plaintiff a balance of $266.90. (4) That the said goods
were sold and delivered solely upon the faith and credit
of the said Howard Caldwell, and that the said
Furman Hall on his own account did not have credit with this
plaintiff, and, if the premises and representations
of the said Howard Caldwell had not been made, none of the
said goods would have been sold and delivered as
aforesaid; that demand has been made of the defendant
for the payment of the said sum of $266.90, and no part of
the same has been paid by discount or otherwise." The
words which we have italicized show that the allegations of
the complaint are appropriate to an action against the
defendant solely upon his promise to pay for the goods sold
and delivered at his request to a third party. In this
connection, we desire to call special attention to the
allegations that the defendant represented that he and Furman
Hall were in the lumber business together, and that the
supplies were needed for the stock of Furman Hall, which were
being used in said business, inasmuch as they show that the
promise of the defendant was original, and not collateral.
Furman Hall made no denial of said representation, the
reasonable inference from which was that he and the defendant
were partners in business, in which event both were jointly
and severally liable, and the defendant would be estopped
from setting up the plea that he was only a guarantor. Under
this construction of the complaint, these allegations upon
which the appellant's attorneys rely to show
that the defendant is sued as a guarantor may be regarded as
surplusage.
The
next question that will be considered is whether there was
any testimony whatever tending to sustain the allegations of
the complaint. J. B. Duke, a witness for the plaintiff
testified as follows: "Q. You are an employé of Lorick & Lowrance? A. Yes, sir. Q. Do you recollect Howard Caldwell
and Furman Hall coming in the store of Lorick & Lowrance
October, 1907? A. Yes. Q. Please state what occurred. A. I
will say it was the 8th of October when he came in there, and
asked for Mr. Lorick, who had gone to dinner, and introduced
Mr. Hall to me, and he stated that he and Mr. Hall were going
into the mill business at Pelion. Q. What kind of mill
business? A. Lumber business, and that Mr. Hall would need
feed for his stock, an a little later he would want
probably some other stuff; and he gave me an order on the
strength of his representations for some stuff. Q. Who gave
you the order? A. Mr. Caldwell. Mr. Caldwell stated that, if
we would ship the stuff to Mr. Hall, he would pay the bills
every 30 days. *** We did not know Mr. Hall at...
