Swaboda v. Throgmorton-Bruce Co.
Decision Date | 16 January 1909 |
Parties | SWABODA v. THROGMORTON-BRUCE COMPANY |
Court | Arkansas Supreme Court |
Appeal from Clay Circuit Court; Frank Smith, Judge; reversed.
Reversed and dismissed.
Hunter & Castleberry, for appellant.
The promise was nothing more than a collateral undertaking. 12 Ark. 174; 70 Id. 79; 3 Bl. Com. (Lewis Ed.), 1151 note 35; 104 N.W. 1046; 139 N.C. 533.
W. W Bandy, for appellee.
Appellee sued appellant for goods delivered and charged to one Thurman, appellant's tenant. Mr. Throgmorton testified on behalf of appellee that, after he had refused to let Thurman have goods without security, appellant came to the store and told him (witness) "to let Thurman have what goods he wanted, and he would see him paid," and that "upon Swaboda's agreement to become surety for Thurman he (witness) advanced to the said Thurman merchandise from time to time" and charged same on the books to Thurman. Another witness testified that he heard appellant tell Throgmorton, in speaking about the Thurman account, that he would "see him paid." Appellant pleaded the statute of frauds, and denied in his testimony that he ever agreed to pay or secure the Thurman account.
The evidence was insufficient to sustain a verdict in appellee's favor, and a peremptory instruction should have been given as requested by appellant. The facts bring the case squarely within the doctrine announced by this court in Kurtz v. Adams, 12 Ark. 174, as follows:
In the case of Emerson v. Slater, 63 U.S. 28, 22 How. 28, 16 L.Ed. 360, the Supreme Court of the United States said: "Cases in which the guaranty or promise is collateral to the principal...
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