
    
      J. H. and A. Taylor v. Miles Drake.
    
    Plaintiffs, auction and commission merchants, refused to deliver goods bought a credit at their sale, by a Mrs. Owens, unless defendant would indorse her note for the payment. This, defendant verbally agreed to do, and the goods were delivered to, and entered in the name of Mrs. O. on their books. Defendant having failed to indorse as agreed upon, plaintiffs brought assumpsit against him. The court held the undertaking of defendant to be merely collateral, and as surety for Mrs. O. without consideration, and within the Statute of Frauds.
    If the person for whose use goods are furnished, be liable at all, any promise by a third person to pay that debt, must be in writing. Léland v. Creyón, 1 M’C,-100.
    The goods delivered to the original purchaser, are the consideration of his indebtedness, and cannot be extended also into a consideration to a party undertaking for him provisionally.
    
      Before Withehs, J. at Charleston, May Term, 1849.
    This action was in assumpsit, and the plaintiffs claimed $235 04, balance of $463 10, for goods sold by them, as vendue masters, on the 6th April, 1844.
    The declaration, besides the money counts, contained sundry special counts, which may be briefly characterized as follows : 1st. If the plaintiffs would deliver certain goods to Mrs. Owens, the defendant would pay for them by her note indorsed by him. 2d. If the plaintiffs would so deliver goods as aforesaid, the defendant would pay for them generally.
    3d, If the plaintiffs would so deliver to Mrs. Owens goods that had been bargained and sold to the defendant, he would pay by her note indorsed by him. 4th. Same as last count, except that he would pay absolutely. 5th. Indebitatus as-sumpsit, for goods bargained and sold to him, and delivered to Mrs. Owens at his request. 6th. Quantum valebant, for goods sold to defendant, and delivered to Mrs. Owens at his request. 7th. Indebitatus, for goods sold and delivered to him. 8th. Quantum valebant for same.
    
    Plea — general issue.
    The contest turned upon the question, whether the defendant was protected by the Statute of Frauds ; and the defendant urged & motion for non-suit upon that position.
    The testimony was all on the part of the plaintiff, and was as follows:
    
      John W. Rice.
    
    I was the plaintiffs’s clerk, when the bill of goods, now sued for, was made. The goods are entered thus : “ Mrs. Eliza Owens bought of (plaintiffs) auction' and commission merchants.” Drake was present at the purchase, and when a lot was knocked down, he assisted in the selection of such parts as were to be taken. Mrs. Owens bid. After the goods were sold, the plaintiffs refused to deliver ^them, unless the defendant would indorse Mrs. Owens’ note, which he agreed to do. She had before bought small parcels, when John Robinson was her surety. The plaintiffs would not have trusted her for so much as this bill. After the above understanding, I sent the goods to Mrs. Owens’ store. Her credit was a mere nothing. The goods had remained in the store three or four days before delivery, and were delivered on the defendant’s credit, who was a merchant in King-street. When I called on defendant, (afterwards,) he declined to indorse the note, alleging, 1. that the bill was larger than he expected; 2. that Mrs. O. had taken a large portion of the goods to St. Augiistine, and had left no blank note, and he expected Mrs. O. would reduce the amount on her return, when a note would be given for the balance. The defendant attends auction sales, and has done so for the last six years. The amount of each lot taken by Mrs. Owens was declared at the bidding. As usual, on Monday after the sale I went to demand the note. Defendant did not dispute his agreement to indorse it. I saw some of the goods in her store afterwards, and she would be likely to have a part of the stock on hand more than twelve months.
    
      Crox examined. — Mrs. Owens and defendant were together at the auction table/on auction day, when the sale in question took place. I told the defendant I would deliver the goods, as soon as he would say he would indorse. Saw boxes marked for Augustine in Mrs. O’s. store, and she said they tvere to go there. I enquired of Mrs. O. how she would settle. I looked on her as principal debtor. Did not expect her to pay cash, for a credit was allowed. Whatever was paid, was paid by her. I called several times on the defendant for the nole. Mrs. Owens has been repeatedly called on for the debt. She owed a small amount before this transaction. Drake was at M’Bride & Hankel’s store when I called on him. I told him that if he would promise to indorse the note, I would deliver the goods.
    
      In reply— I called on Drake after Mrs. Owens returned ; several times before the first credit; can’t say I ever presented the bill to him, but the amount was made, known to him.
    
      John Hankel.
    
    Goods were brought to us by Drake from Mrs. Owens’ store, and he received the proceeds. The general style of the goods was such as specified in the bill sued upon in this case; such as the plaintiffs deal in. Sales were closed on 17th February, 1845.; began first of that month, or last of January. Knew no other person in the matter but Drake.
    
      Cross examined. — The invoice sent to us was in his name. The same style of goods was common to many stores.
    
      His Honor says : I overruled a motion for a non-suit, for I thought there was ambiguity enough in the testimony, taken ( altogether, and the peculiar characteristics of the transaction, to require the intervention of the jury in fixing the true understanding of the parties, and therefore, the true nature of the contract. For example, although Mrs. Owens bid at the auction sale for the goods, yet Mr. Drake was present, and as active as she in going through 'the preliminaries of the purchase. Though the goods were finally sent to the woman, they were not so delivered until the lapse of three or four days, nor until the defendant’s promise, however to be interpreted, was made. Though Mrs. Owens made payments, yet the testimony was, that the goods were delivered (and it was then- only the contract was complete.) entirely on the credit of Drake,'for “Mrs. Owens’ credit was a nothing goods were delivered on defendant’s credit,” said Mr.. Rice. Though the entry was made to Mrs. Owens, that was not conclusive, (however strong,) .as has been several times adjudged. It was less conclusive in .this case than many others, for if made before the goods were received by Mrs. Owens, and at the time of the bargain or proposals at auction, it was but a memorandum of what goods had been bid for by her, and offered to be sold, but not sold, because not delivered, and inchoate, as after events'proved. Until the goods.were delivered, Mrs. Owens incurred no legal liability to pay, for until then the case was.under the 17th sec. of the Statute of Frauds. I suppose, therefore, I did-well in referring the case to the jury, for such reasons as recommend that course, and are set forth in Roberts on Frauds, and recognized by Ohitty on Contracts, where, speaking of theiriqui-ry whether any credit was given to the third person, ii is said, “ This is a question depending not altogether on the particular words of the guaranty, or promise of the defendant, but upon the particular circumstances of each case, and the general features of the transaction.” Upon this, we are also told, light may be borrowed from the subsequent conduct of the purchaser.
    To the jury I stated the question to be, whether the undertaking of the defendant was original or collateral, and I endeavored to give them the legal idea of the meaning of the terms. I held that it was not material, in this question, whether a credit was allowed to the defendant, or a liability was assumed to pay instanter. I held that a contract, by which a defendant is to furnish a note on which he is to be endorser, was not necessarily a collateral undertaking, on his part, in the sense of the Statute of Frauds; for if he was to be accounted paymaster in this case, such an engagement was the same as if he had promised to deliver a note, joint and several, of Mrs. Owens and himself, or any body else and himse]f>
    
      ' The jury were advised to consider whether the true import 0f t|ie contract was equivalent to this: If you will deliver to Mrs. Owens the goods, you shall have a note of her’s, with my endorsement; and that this was independent of the failure of Mrs. Owens to pay: if so, the contract would not necessarily be within the statute.
    They were advised that the true understanding of the parties should be gathered from examining all the facts, in order to ascertain whether the liability was absolute or conditional; as, on the one hand, whether the goods sold by M’Bride and Hankel were part of the goods in question, and being such in the name of defendant, and proceeds paid to him, it should be thence concluded that he had the legal property in them, and so dealt with them, as having been in fact sold to him, though delivered to another; or, on the other hand, whether this was rebutted by the fact, that the entry in the book of «.plaintiffs’s was to Mrs. Owens, from whom part payment had been received, and, therefore, that Mrs. Owens was looked to as the original debtor.
    The jury were further instructed thus.: Suppose the contract was this: if you will deliver the goods to Mrs. Owens, if, at the end of the credit, she does not pay, I will give you her note endorsed by me; the case would be within the statute.
    Again. Suppose the contract this: If the plaintiffs would procure the note of Mrs. Owens, and present it to defendant, he would endorse it, it would be not an absolute, but a conditional contract, and not such as had been declared and relied on. Or was it, if you take Mrs. Owens’s note, I will endorse it; such contract would not be that alleged by the plaintiffs, and they must fail.
    I add an observation here, which, however, I do not wish to be understood as having been made at the trial. Mr. Ro-pjerts considers, that one anchorage had been gained, at any rate, by the course of decision in England, viz : “ That the person undertaken for, must be or become liable at the time that the promise by the third person is made.” I have already suggested, that for the space of three or four days after the auction, Mrs. Owens’s legal liability did not arise, because it was excluded by the 17th section of the Statute of Frauds. It did not appear, as I apprehended,.that any intercourse was had with her during that time; at ail events, the defendant’s promise was made before her legal obligation to pay arose, which was not until, if ever, the goods were delivered to her. It would seem, therefore, that the defendant made his promise, whatever it was, (and the jury, according to the guides I proposed to them, have construed it to have been absolute,) before any action could have been maintained against her.
    
      Upon the whole, I am glad the defendant appeals, as he does upon the grounds annexed, for I was, and am, sensible | of the legal perplexity that attends such cases as this, and a circuit decision deserves review in a wiser and more deliberate tribunal.
    Motions were made in the Court of Appeals for a non-suit or a new trial, on the grounds:
    
      For a Non-suit. — That the case was clearly within the Statute of Frauds, and the motion for a non-suit below should have been sustained.
    
      For a New Trial. — 1. That the defendant’s promise was to endorse Mrs. Owens’ note, and it was not shewn that the note was ever presented to the defendant for his endorsement.
    2. That the Judge erred in charging the jury, that they could put such a construction ón the evidence, as to establish the fact that the defendant was to produce Mrs. Owens’ note, with his own endorsement, and to take the case out of the Statute of Frauds.
    
      Phillips, for the motion.
    
      /Simons, contra.
   Curia, per Richardson, J.

The motion is for a non-suit, upon the ground that the contract .made b.y Miles Drake, to answer for the goods delivered to Mrs. Owens, by the plaintiff ’s, is within the protection and provisions of the Statute of frauds. Because such contract was never acknowledged in writing, nor was it made for and upon any sufficient consideration to make it binding upon him. The enactment that governs the case is as follows: “ No action shall be brought, &c. whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” The decisions expounding this fourth clause of the Statute of frauds and .perjuries, are very many. But the difficulty is not so much in the law as to perceive and decide what was the exact meaning of the parties in each particular case. In the case now before the Court we have to decide,

First. Whether Miles Drake was merely the surety of Mrs. Owens, the principal debtor, for the goods .in question, or, was he himself the original debtor for the goods, and Mrs. 0. not liable.

And secondly, whether any sufficient consideration passed to Miles Drake, either at the sale or subsequently, so as to render the contract for the amount of the goods, binding upon him, even if he were not the original , debtor and had not bound himself in writing.

The first enquiry is resolved by asking who was the prin-cjpa| an¿ orjginal debtor for the goods? This is a question of Tact: Mrs. Owens bid off the goods. The entry in plaintiffs’ "books was thus, “Mrs. Eliza Owens bought of J. H. & A. Taylor, Auction and Commission Merchants,” &c. And the plaintiffs’s Clerk, J. W. Rice, says he' looked on her as the principal debtor. The goods were sold on a credit, and the plaintiffs refused to deliver them to her, unless Drake would endorse her note. This Drake agreed to do — whereupon the goods were sent to Mrs. Owens’store, but Drake'afterwards refused to endorse the note. Rice says, in his cross examination, “I told Drake I would deliver the goods, as soon as he would say he would endorse.”

Thus the promise of Drake was explicit but only verbal. Rice further says, whatever was paid was paid by Mrs. Owens.

The particular adjudication of our own that here applies, that of Leland v. Creyon, i. e. If the person for whose use goods are furnished, be liable at all, any promise by a third person to pay that debt must be in writing. This is well illustrated by the opposite case Mease v. Wagner. Where no action lies against the party undertaken for, it is not within the statute.

Now then, is it not plain, that Mrs. Owens was the original, and in the language of Rice “ principal debtor?’ The evidence, I think, places her obviously in that, position, while it places Drake in the position of a collateral surety, Only to answer in case of her default and non-payment.

The undertaking and promise of Drake was to become her endorser, which plainly keeps up the proper idea, of a provisional and collateral indebtedness for Mrs. Owens, the maker. The legal liability of an endorser, who is a provisional debtor, presents the precise idea of that kind of liability against which the Statute would guard men, unless it be put in writing.

The whole wisdom of the Statute against frauds is to render nugatory such collateral and provisional undertaking; unless the contract be put in writing, or be made for valuable consideration. The law is easily comprehended, and in this particular instance, as I understand it, applies to the case made by the evidence, as plainly as the common illustration of the Statute of frauds — “let A have goods and I will be security that he will pay for them, or if he does not pay I will.’’ Such an undertaking is collateral, and void, by the express protection of the statute against .such contracts, unless they be put in writing.

The contract of Drake amounted to this — “ let me have the goods she has bought, and I will endorse her note for the payment. In other words, I will be her surety for their amount. But she is-still the principal debtor, and I will answer in case-of her default.” And, accordingly, the goods were charged to her alone, in plaintiffs’s books. (

It can make no difference, at what time the goods were sent to Mrs. 0.

The assurance of Drake equally refers to the purchase she had before made, and is therefore equally collateral.

The second enquiry is whether any sufficient consideration passed to Miles Drake, so as to render him subsequently, or before the sale, liable as the original debtor. A man may make himself liable for the default of another, either by an original undertaking, or by a sufficient consideration received, so as to render him liable, but there is none such in the present case. In every case of a delivery of goods, there is the same consideration. But these goods are the consideration of the indebtedness of the purchaser, not of the collateral undertaking. To make the goods constitute the two considerations would render the statute nugatory. This distinction gives the reason of that class of adjudications which protect the collateral or provisional debtor, in all cases where the principal debtor is liable at all, i. e. the goods delivered to the purchaser cannot be extended also into a consideration to the provisional debtor. Once make the goods delivered serve such double purpose, you strike down the statutory shield at a blow.

The case is well illustrated by the opposite and very recent decision in the case of Samuel Tindall v. T. T Touchberry. In that case a constable levied on a mare of one June. Touchberry agreed, if he would allow June to have the possession of the mare, he would be liable if not redelivered to the constable on the next day. This was held to be an original agreement by Touchberry. For, although made for the sake of June, June was not liable; and, therefore, the case was not within the Statute of Frauds. Because the whole credit was given to Touchberry. It was like the common illustration, “ let A have goods and I will pay for them.”— This was an original promise.

But if June had been liable, as is Mrs. Owens, Touchberry would have been shielded by the statute, and the decision reversed. In any case wherein the presiding Judge has refused a nonsuit, it is with hesitation that I differ from him in the consideration of the evidence. But in the present case, it is plain that the Judge hesitated to grant rather than that he refused the motion — choosing to leave the nonsuit to a higher tribunal. Upon the whole, therefore, this Court is of opinion that the proper construction of the promise and undertaking made by Drake, was collateral and as surety for Mrs. Owens, because she was, herself, clearly liable for the amount of the goods, and the undertaking of Drake was merely provisional; and being without consideration, is protected by gtatute of Frauds.

The motion of the defendant to set aside the verdict and to enter a nonsuit, is, therefore, granted.

O’Neall, Evans, Frost and Wardlaw, JJ. concurred.

Motion granted.  