
    *Ware v. Stephenson.
    April, 1839,
    Richmond.
    (Absent Parker, J.)
    Witness — Assumpsit.—In assumpsit for goods furnished a third person, such person is a competent witness for the plaintiff.
    Demurrer to Evidence — Pacts Established — How Ascertained. — Upon a demurrer by the defendant to the plaintiff’s evidence, the court, to ascertain what facts the evidence establishes, must look to the whole of it.
    
      Same— Same— Same — Inferences. —Upon such demurrer, in ascertaining the facts established hy any one witness, every thing stated by him, as well on his cross examination as on his examination in chief, must be considered. Facts imperfectly stated in answer to one question may be supplied by the answer to another. And where, from one statement considered by itself, an inference may be deduced, that inference may be strengthened or repelled by the facts disclosed in another.
    Statute of Frauds — Guarantee—Collateral Undertake ing. — Where the defendant’s undertaking is for a consideration to be received by, or articles to be supplied to a third person, if the transaction be such that the third person is responsible to the person who supplies the articles or from whom the consideration proceeds, the undertaking is collateral, and under the statute of frauds will not bind unless it be in writing.
    Case at Bar. — Question upon the evidence, in an action for goods furnished a third person, whether orno such third person was responsible to the ' plaintiff.
    Assumpsit in tile circuit court of Frederick county, by Joseph F. Stephenson against Josiah W. Ware, upon an alleged promise by the defendant to pay the plaintiff for any goods he might furnish out of his store to one Jacob Vogdes. Plea, the general issue.
    At the trial, the plaintiff, after proving the absence of Vogdes from the commonwealth, offered his deposition in evidence, and the defendant objected that Vogdes was incompetent on the ground of interest, but the objection *was overruled, and the defendant excepted to the opinion.
    The plaintiff then read in evidence to the jury the deposition of Vogdes, with an account thereto annexed of the plaintiff against the defendant, commencing the 4th of "May 1833, which account amounted, on the 30th of June 1834, to 399 dollars 60 cents, and on the 22d of August 1834, to 445 dollars 96 cents. In answer to the first four questions of the plaintiff’s counsel, Vogdes deposed that he was a house joiner and carpenter, and was at work at colo. Ware’s building (the defendant’s) from the date of the first article in the account for a period of from nine to twelve months ; that he had examined the account and found it correct; that he was a stranger in the neighbourhood, and became acquainted with Stephenson about five weeks previous to the commencement of the account.
    The fifth and sixth questions, and the answers thereto, were as follows: “5th question. What induced you to run up said account, and on whose authority was it commenced ? State all you recollect of the origination of the account. Answer. I was frequently solicited by mr. Stephenson to divide my custom with the merchants of the place, and I told mr. Stephenson I must consult colo. Ware first, which I did, and colo. Ware and myself went to mr. Stephenson and had a conversation with him at the door of the store. Colo. Ware stated to mr. Stephenson that I was engaged on a building for him, and .would want to be furnished with different articles out of his store, and that he (Ware) could not pay him for the articles until next harvest come one year. Mr. Stephenson assented to it, and received my orders for goods from that time until within three months of the finishing of colo. Ware’s building. 6th question. Upon whose promise or undertaking to pay for the goods in said account, were they furnished by mr. Stephenson ? Answer. I was induced to believe they were furnished *upon colo. Ware’s agreement to pay for them. I was a stranger, and did not think mr. Stephenson would credit me, but it was to come out of the money which colo. Ware would owe me at the finishing of his building.”
    Upon the cross examination, there were the following questions and answers : “7th question. Will you state whether the articles charged in the account you have alluded to were got for your own use and benefit ? Answer. Yes, sir ; for the benefit of myself, my family and hands. Question. In the conversation you have spoken of at the store door, was the understanding of the parties that mr. Ware was to stand as security for you? Answer. That was the way I understood it, and that mr. Ware was to pay for the goods out of such moneys as might be due when the building was finished, and that mr. Ware was to be my paymaster, and to reserve it out of such money as might be due me, upon a settlement with mr. Ware when the building was done. Question. Did you understand that mr. Ware was to pay the account whether there should be any money due to you on settlement or not ? Answer. Certainly not. Question. Whilst the account you have mentioned was accruing, did mr. Stephenson frequently or at any time apply for p.ayment of it, or to draw orders on mr. Ware in his favour, for money on that account ? Answer. Yes, mr. Stephenson did frequently apply to me for orders on colo. Ware, and I think X gave him an order. He frequently applied to me to endeavour to secure the payment of the account by drawing an order for the account on mr. Ware, which if he would accept, it would be all right. Question. Had mr. Ware any authority to pay any part of the account without your direction to apply the money which might be due to you on settlement to such payment ? Answer. Ho, sir, he had not, nor had he any right to accept an order from me unless he *chose to do so. At the commencement of the work, it was understood that mr. Ware would not accept my orders unless he chose. Question. Was the account kept against you in the first instance ? Answer. I cannot answer distinctly as to that. I am under the impression that the account was kept against me. I know the account in mr. Stephenson’s ledger was headed with my name. The orders for goods were drawn by me, and, I think, the account kept against me. Question. Whose debt was it which grew out of the account ? Answer. As X got the goods for my own use and that of my family and hands, I always considered it my debt, and mr. Ware as my security. — Had you not a conversation with mr. Stephenson about the time of finishing mr. Ware’s building, about the account, and did not mr. Stephenson agree to indulge you? Answer. I had a conversation with mr. Stephenson on the afternoon of the finishing mr. Ward’s building, and stated to him I had settled with colo. Ware, and that X was not able to pay all of his account; that I was very sorry that I could not pay him the whole account, but I was willing to give him my note for the balance, as I had done with the other merchants of the town. Mr. Stephenson then replied to me that he did not consider the debt mine, but the debt of colo. Ware, and refused to take my note. I then told mr. Stephenson that I would be in that country again in the spring, to work, and that I would use the utmost of my endeav-ours to see him paid ; but he never did say he would indulge me. Question. Will you state whether mr. Stephenson made very frequent applications to you, to endeavour to get the debt due to him on the said account secured to him in mr. Ware’s hands, or through mr. Ware ? Answer. Mr. Stephenson frequently applied to me for orders to mr. Ware, and I stated to mr. Stephenson that they would not be accepted by colo. Ware. He (Stephenson) told me his claim ought to be secured in colo. Ware’s hands.”
    *The witness, upon a reexamination by the plaintiff’s counsel, deposed that the contract between him and Ware was, that he (Ware) was to pay the witness money, provided he had it at the time that the witness might apply to him for it, and that he was willing to get the witness, out of any of the stores, any articles that would answer for the witness and his hands. Witness was to wait with colo. Ware for any money that might be due him after the building was finished, until it should be convenient for colo. Ware to pay it; but Ware was to use every exertion to pay the witness off when the building was finished. The work, when it was finished, amounted to 2250 dollars. Colo. Ware paid the witness that sum during the progress of the building and after it was done, or assumed the payment after the building was done.
    The plaintiff’s counsel proved the handwriting of Vogdes to an order in these words : “ Berry ville, Sept’r 30,1834. Colo. Jos. Ware. Sir, you will oblige me by paying mr. Joseph 1?. Stephenson the account of plank furnished you. Jacob Vogdes ” — and offered the said order as evidence ; but the court rejected the same; to which opinion the plaintiff excepted.
    Another witness, John W. Duke, deposed that he had lived with the plaintiff, as clerk and salesman in his store, from the 20th of August 1833, and, from that date until the close of the account, sold to Vogdes the greater part of the articles mentioned in the account. The account was kept in the name of Vogdes. Witness was under the impression that the credit was given to the defendant and not to Vogdes, because he (Vogdes) was a stranger in the neighbour-hood, had no property there, and there were notes or bonds of Vogdes brought there by others from Doudoun, and offered for sale at a discount. There were kept at the same time, on the books of the plaintiff at his store, an account against the defendant, and Stribling, *in the name of Ware and Stribling, and an account against the two misses Stribling, for all of which the defendant was looked to by plaintiff for payment.
    Another witness, Treadwell Smith, deposed that Vogdes came as a stranger to the neigh-bourhood of plaintiff and defendant. Witness had been informed by a friend of his in Baltimore, that said Vogdes had taken the benefit of the insolvent oath in-that city, and was cautioned not to trust him. Witness did not know whether plaintiff was aware of Vogdes’s insolvency. Witness did not speak of it, nor did he believe that Vogdes’s circumstances were generally known in the neighbourhood.
    The defendant demurred to the evidence introduced before the jury. The jury found a verdict for the plaintiff for 399 dollars 60 cents, with interest from the 1st of August 1834, subject to the opinion of the court on the demurrer. And the circuit court rendered judgment on the demurrer for the plaintiff. To which judgment a supersedeas was allowed.
    The cause was argued in this court by Leigh for the plaintiff in error, and Robinson for the defendant in error.
    I. Leigh insisted that Vogdes was not a competent witness ; Waggoner v. Gray’s adm’rs, 2 Hen. & Munf. 612. It is an attempt to swear himself out of responsibility for the debt, and to throw it in the first instance on Ware.
    Robinson said, the remark of judge Roane in Waggoner v. Gray’s adm’rs was only this, that it would be of dangerous consequence to permit Slaughter to recover a debt of his own, by his own testimony. Slaughter was in debt to Waggoner, and deposed that Gray was in debt to him, and he (Gray) agreed to pay Waggoner, and Waggoner agreed to credit Slaughter. The objection was that Slaughter would be discharged from Wag-goner’s claim, if Waggoner recovered from Gray’s administrators, but would still be liable to Waggoner, if Waggoner failed to *recover from Gray’s administrators. Slaughter might indeed sue Gray’s administrators, but he could not recover against them on his testimony. The objection therefore was that Slaughter was doing indirectly what he cotfid not do directly, viz. recovering a debt of his own, by his own testimony. But here, Vogdes is not recovering a debt from Ware, either directly or indirectly. And the recovery by Stephenson will in no manner promote his interest. It is true that if Stephenson fails to recover from Ware, he may sue Vogdes; but on the other hand, if he recovers against Ware, Ware may sue Vogdes. Fancourt v. Bull, 1 Bingham’s 1ST. C. 681 ; 27 Eng. Com. Law Rep. 542.
    II. Upon the demurrer to evidence, Leigh observed, that the old distinction taken by lord Mansfield between a promise to pay for articles before delivery, and a promise after-wards. was overruled. Mawbrey v. Cunningham, cited in 2 T. R. 80 ; Jones v. Cooper, Cowp. 227; Matson &c. v. Wharam, 2 T. R. 80; Anderson v. Hayman, 1 H. Black. 120; Watkins v. Perkins, 1 Ld. Raym. 224 ; Keale v. Tempe, 1 Bos. & Pul. 158. The doctrine now is that if the person for whose use the goods are furnished be liable at all, the promise must be in writing. Cutler v. Hinton, 6 Rand. 509. How here, the court must come to the conclusion that Stephenson might have maintained ■ an action against Vogdes. Though Ware had other accounts, the goods were charged not to him but to Vogdes. On the part of Ware, there was nothing more than a stipulation that the fund in his hands should be applied to pay the debt. If there be variance between some parts of the evidence and others, the court must take it altogether, and draw from the whole such inferences as a jury might draw. The evidence of Vogdes on his cross examination, though contradictory, must be taken as a qualification of what he had previously said. He understood that Ware was to stand as surety. Stephenson so understood; for he made frequent ^'attempts to get orders on Ware. He obtained one order, which was not accepted. If the liability of Ware was direct, why did Stephenson raise the account against Vogdes? Why did he attempt to get orders from Vogdes ? Luke says, he was under the impression that the credit was given to the defendant ; but it is nothing more than an impression, for Luke did not hear the conversation between Ware and Stephenson.
    Robinson referred to Chase v. Day, 17 Johns. Rep. 114 ; Towne v. Grover, 9 Pick. 306 ; Bird v. Gammon, 3 Bingh. N. C. 366 ; 32 Eng. Com. Law Rep. 366, 369, and Dixon and others assignees of Moore v. Hatfield, 2 Bingh. 439 ; 9 Eng. Com. Law Rep. 471, which last case, he said, was very apposite, West had undertaken to do carpenter’s work upon a house and find all materials, but wanting credit or funds to procure timber, Hatfield agreed to pay Moore £50. for timber out of the money that he had to pay West, provided West’s work was completed ; and upon this agreement Moore supplied the timber. The court were clear that this was not a collateral but a direct undertaking. Here the circumstances are very similar, and conduce to shew that Ware’s undertaking was direct. Vogdes was a stranger in the neighbourhood, and came there insolvent. He was at work on Ware’s building. And WTare and Vogdes went to Stephenson and had a conversation with him. Ware stated that Vogdes would want articles out of Stephenson’s store, and he (Ware) could not pay for them until next harvest come one year. Stephenson assented, and delivered goods until within three months of the finishing of the building. Vogdes states that being a stranger, he did not think Stephenson would have credited him. He believes the goods were furnished upon Ware’s agreement to pay for them, but the payment was to come out of the money which Ware would owe him upon the contract between them. In a subsequent part of his deposition, he states that the amount growing out of that *contract was 2250 dollars. ' Luke too is under the impression that the credit was given to Ware. Leaving out the evidence upon the cross examination, every thing goes to shew that the credit was given to Ware. This inference is not rebutted by the fact that the account was entered on the books in the name of Vogdes. For Ware had various accounts, and it was convenient to keep the amount on account of Vogdes separate, that he might afterwards get it on a settlement with Vogdes.
    The principle is well settled, that a de-murrant admits all the facts that could reasonably be inferred by a jury from the evidence given by the other party, and waives all the evidence on his part which contradicts that offered by the other party. This principle ought to be applied to the evidence on the cross examination. That evidence should be disregarded so far as it contradicts the evidence on the general examination. Besides, the evidence upon the general and cross examinations may be reconciled by treating the words surety and paymaster as synonymous. And so Vogdes regards them. To say that the debt was his and Ware the surety for it, he considers the same as saying that Ware was paymaster to Stephenson, and he (Vogdes) was to pay the debt on a settlement with Ware. As to Stephenson’s applying for orders, that may be explained in two ways. One reason was to, get prompt payment; the other, to have written evidence.
    
      
      He decided the cause in the court below.
    
    
      
      Witness — Assumpsit.—The principal case is cited in Dishazer v. Maitland, 12 Leigh 533. See mono-graphic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
      Demurrer to Evidence — Effect.—The language of Judge Stanard in the principal case, as to the effect of a demurrer to evidence, is quoted with approval in many subsequent cases both in Virginia and west Virginia. See the principal case cited in Trout v. Virginia & Tenn. R. R. Co., 23 Gratt. 638 ; Richmond, etc., R. R. Co. v. Moore, 78 Va. 97 ; Southwest Imp. Co. v. Andrew, 86 Va. 279, 9 S. E. Rep. 1015; Clark v. Richmond, etc., R. R. Co., 78 Va. 712; Union Steamship Co. v. Nottinghams, 17 Gratt. 120 ; Miller v. Ins. Co., 8 W. Va. 533; Heard v. Railway Co., 26 W. Va. 458.
      In Heffiebower v. Detrick, 27 W. Va. 21, the court said: “As the defendantintroduced no evidence, the effect of his demurrer to evidence is to allow full credit to all the competent evidence of the plaintiff, and to admit all the facts directly proved by, or that a jury might fairly infer from it. In drawing these inferences as to what the evidence, whether direct or circumstantial and presumptive tends to prove, it is incumbent on the court to adopt those most favorable to the demurree provided they be not forced, strained or manifestly repugnant to reason. Hansbrough v. Thom, 3 Leigh 147; Whittington v. Christian, 2 Rand. 358; Miller v. Ins. Co., W. Va. 515; Ware v. Stephenson, 10 Leigh 164; Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 619.”
      The principal case is cited in Richmond, etc., R. R. Co. v. Williams, 86 Va. 167, 9 S. E. Rep. 990. See foot-note to Richmond, etc., R. R. Co. v. Anderson, 31 Gratt. 812. See Green v. Judith, 5 Rand. 1; Stephens v. White, 2 Wash. 203.
      Same — Review by Appellate Court — Test.—Where there is a demurrer to evidence, and the question in the appellate court is, whether or not a fact ought to be taken as established by the evidence either directly or inferentially in favor of the demurree, the test is, whether the court would set aside the verdict, had the jury on the evidence found the fact. If the verdict so finding the fact would not be set aside, such fact ought to be considered as established by the evidence demurred to.
      The principal case is cited for this proposition in Fowler v. B. & O. R. R. Co., 18 W. Va. 583 ; Richmond, etc., R. Co. v. Anderson, 31 Gratt. 820; Michael v. Roanoke Machine Works, 90 Va. 498, 19 S. E. Rep. 261; Trout v. Virginia & Tenn. R. R. Co., 23 Gratt. 639; Miller v. Ins. Co., 8 W. Va. 534; Heard v. Railway Co., 26 W. Va. 458 ; Richmond, etc., R. R. Co. v. Moore. 78 Va. 97.
      See generally, monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
    
      
       Statute of Frauds — Collateral Undertaking. — Where the consideration of a defendant’s undertaking or promise is for money or property to be furnished to or received by a third person, if the transaction be such that the third person remains responsible to the person who furnishes him with such money or property, or from whom the consideration proceeds, such promise or undertaking is collateral, and under the statute of frauds will not bind the defendant, unless it be in writing. Radcliff v. Poundstone, 23 W. Va. 733, citing the principal case; Waggoner v. Gray, 2 Hen. & M. 603 ; Cutler v. Hinton, 6 Rand. 509; Noyes v. Humphreys, 11 Gratt. 636.
      The principal case is cited in this connection, in Riffe v. Gerow, 29 W. Va. 468, 2 S. E. Rep. 107; Noyes v. Humphreys, 11 Gratt. 645, 646.
      See foot-note to Noyes v. Humphreys, 11 Gratt. 636, .and monographic note on “Frauds, Statute of” appended to Beale v. Digges, 6 Gratt. 582.
    
   STANARD, J.

The objection to the admissibility of the evidence of Vogdes was properly overruled. He stood entirely indifferent between the parties litigant, or if he had any interest, that interest was against the party who offered him as a witness. If Stephenson failed in the suit against Ware, Vogdes remained responsible to Stephenson, and if he succeeded, Vogdes would be certainly responsible for an equal amount to Ware, and might perhaps be also liable to Ware for the costs of *this suit. This possible liability for the costs of this suit if it resulted in a recovery against Ware, might have been an objection, if the witness had been offered by Ware, and Stephenson had objected, but is wholly unavailable in the mouth of Ware.

The demurrer to evidence presents a more serious if not a more difficult question. The assumpsits set out in the declaration are direct and original, not collateral. The necessity of shewing such an assumpsit by the proof is twofold. The proof of a collateral liability for goods sold and delivered to another would not support the declaration, though the undertaking were in writing ; and if it would, the undertaking in proof being oral, the statute denies a right of action ofi it. Does the evidence prove a direct and original, or a collateral undertaking? In ascertaining the facts proved directly or by inference, we must not be unmindful of the effect of a demurrer to evidence. By it the demurrant allows full credit to the evidence of the demurree, and admits all the facts directly proved by, or that a jury might fairly infer from, the evidence. And in determining the facts inferrible, inference most favourable to the demurree will be made, in cases in which • there is a grave doubt which of two or more inferences shall be deduced. In such cases it would not be sufficient that the mind of the court should incline to the inference favourable to the demurrant, to justify it in making that inference the ground of its judgment. Unless there be a decided preponderance of probability or reason against the inference that might be made in favour of the demurree, such inference ought to be made. The demurrer withdraws from the jury, the proper triers of facts, the consideration of the evidence by which they are to be ascertained; and the party whose evidence is thus withdrawn from its proper forum is entitled to have it most benignly interpreted by the substitute. He ought to have all the benefit that might have resulted from a decision *of the case by the proper forum. If the facts of the case depend upon circumstantial evidence, or inferences from facts or circumstances in proof, the verdict of a jury ascertaining these facts would not be set aside, merely because the court might have made inferences different from those made by the jury. To justify the grant of a new trial, when it depends on the correctness of the decision between different inferences to be drawn from the evidence, it would not suffice that in a doubtful case the court would have made a different inference. The preponderance of argument or probability in favour of this different inference should be manifest. When the question is whether or no a fact ought to be taken as established by the evidence, either directly or inferentially ,in favour of the demurree, I do not know a juster test than would be furnished by the enquiry, would the court set aside the verdict, had the jury, on the evidence, found the fact ? If the verdict so finding the fact would not be set aside, it ought to be considered established by the evidence demurred to.

In the case in judgment, the evidence was all parol, and adduced by the plaintiff. In ascertaining the facts established by it, we must look to all of it, and especially in ascertaining the facts established by any one witness, every thing stated by him, as well on his cross examination as on his examination in chief, must be considered. Facts imperfectly stated in answer to one question may be supplied by his answer to another; and when from one statement considered by itself an inference may be deduced, that inference may be strengthened or repelled by the facts disclosed in another. Under the guidance of these principles I proceed to the enquiry, does the evidence demurred to prove, directly or inferentially, a direct and original undertaking on the part of Ware to pay for the goods Stephenson might furnish to Vogdes?

*To support the affirmative, reliance is mainly placed on the answers of Vogdes to the fifth and sixth questions on his examination in chief. By neither of these answers is an assumpsit of any kind directly proved. Ware stated the relation between himself and Vogdes, from which he was to become the debtor of Vogdes, and Vogdes’s want of supplies from Stephenson’s store, and that he (Ware) could not pay Stephenson until after harvest. An assump-sit on the part of Ware of some kind is fairly inferrible from this statement taken by itself, but what that assumpsit was is not directly stated. Now, that assumpsit might have been a direct and original undertaking by which Ware alone became the debtor for the supplies to Vogdes, or it might be an assumpsit to see Stephenson paid, or it might be an undertaking to retain in his hands, of the money for which he might become the debtor of Vogdes, as much as was necessary to pay the debt that Vogdes might contract with Stephenson, and apply it in discharge of the debt. If the facts of the case depended on this isolated view of the evidence, I should, on the principles before stated as applicable to demurrers to evidence, consider it the duty of the court to select, of these implications, that most favourable to the demurree, because such might not unreasonably be the implication of the jury ; though the latter part of the answer to the sixth question would incline me to adopt the last of the above stated implications. But the first of the implications, (which is the only one that would justify a judgment in favour of Stephenson on the demurrer,) is directly confronted not only by facts stated by the witness, but by the strong presumptions which flow from other unquestioned facts. In answer to different questions, he states that he understood Ware was to stand security for him ; that Ware was to pay for the goods out of the money that might be due witness when the building was finished ; and if on a settlement no money was due from Ware, he was not to *pay the account. These facts directly rejiel the idea that the undertaking of Ware was original and unqualified : and this is corroborated by fair if not necessary implication from the facts, that Stephenson applied to Vogdes to deal with him, that Vogdes was charged on the books of Stephenson with the articles supplied him, and that Stephenson frequently applied to Vogdes for orders on Ware, and obtained one for the amount of his account against Vogdes. The statements in Vogdes’s evidence, that he supposed Ware was to be paymaster, and of the witness Luke of his impression that the account was raised on the credit of Ware, which were relied on in argument by the appellee’s counsel are quite compatible with the supposition that the undertaking was collateral; and so I think it must be regarded by the court.

Whatever doubts may at one time have existed respecting the undertakings within the scope of the first section of the statute of frauds, it has long since been definitively settled that when the undertaking is for a consideration to be received by, or articles to be supplied to, a third person, if the transaction be such that the third person is responsible to the person who supplies the articles, or from whom the consideration proceeds, the undertaking is collateral, and if oral is not binding. Matson &c. v. Wharam, 2 T. R. 80; Cutler v. Hinton, 6 Rand. 509. The doctrine of Matson &c. v. Wharam has never, since it was decided, been effectually questioned in the courts of Westminster. In the case at bar, I think it clear beyond doubt, that whatever might have been the undertaking of Ware, Vogdes was responsible to Stephenson. Ho one would, 1 presume, doubt that if Vogdes were the defendant in this action, Stephenson, on the evidence in this case, would be entitled to judgment.

My opinion therefore is that the judgment is erroneous and ought to be reversed, and judgment entered on the demurrer to evidence, for the demurrant.

*CAB®LL, J., concurred.

BROOK®, J.

My first impression of this case on the argument was, that the assumpsit to pay for the goods to be delivered to Vogdes, the party who received them, was a direct assumpsit, and not an alternative or collateral assumpsit, within the statute of frauds; and a very minute examination of the evidence set out in the demurrer has confirmed that impression. Vogdes, to whom the goods were to be delivered, was a house-carpenter and joiner, an entire stranger in the place, and in debt, as appears by the evidence of Luke, who says he was under the impression that the credit for the said account was given to the defendant and not to Vogdes because he was a stranger in the neighbourhood, without property there, and because there were notes or bonds of said Vogdes brought there by others from Lou-doun and offered for sale at a discount. This is strong evidence that Vogdes was not the party intended to be credited by the plaintiff. But let us see what Vogdes himself says. He says that he was a stranger in the place; that he was engaged in building a house for the defendant, which, it appears, cost 2250 dollars ; that the plaintiff and others solicited him to deal with them, (no doubt, on the credit of the money he was to receive for the house from the defendant Ware); that he said he must consult colo. Ware. He then states the conversation that passed between the plaintiff and defendant. He says, colo. Ware stated to Stephenson the plaintiff, that the witness was engaged in building for him, and would want to be furnished with different articles out of his (Stephenson’s) store, and that he (Ware) could not pay him for the articles until next harvest come one year; to which Stephenson the plaintiff assented. This, I think, was manifestly not an alternative promise to pay the debt of another, in the words of the statute. Vogdes seems to have been no *party to it, and of course was not intended to be bound by it. He was standing by, and was to receive the articles. He was not consulted as to the time of payment. The promise was not collateral to any undertaking of his, but, I think, a direct promise by Ware to pay for the articles. In a suit against Vos des, could he be charged in the terms of the promise made by Ware ? I think not. To the sixth question put to him, upon whose promise to pay for the goods in said account were the articles furnished ? his answer was, “ I was induced to believe they were furnished upon colo. Ware’s agreement to pay for them.” But I lay no stress upon this, or any other of the opinions of the witness. I rely upon the facts only that he states. He was an ignorant, though, from his testimony, a very honest man. He goes on : “I was a stranger, and did not think mr. Stephenson would credit me, but it was to come out of the money that colo. Ware would owe me at the finishing of the building.” In answer to another question, “ In the conversation you have spoken of, was the understanding of the parties that mr. Ware was to stand as security for you ?” he says, “ That was the way I understood it.” In another place he says, “Mr. Ware was to be my paymaster and to receive it out of such money as might be due me on settlement.” All this and much more may be descanted on, but I rely on the terms of the promise made by the defendant to the plaintiff when the latter assented to deliver the articles to Vogdes. There is a great deal of cross examination, but no answer that contradicts the facts stated by him as to the terms of the promise made by the defendant to the plaintiff to pay for the articles to be delivered. The witness’s opinions as to the effect of those facts are not facts, nor contradictory of those facts. As to the orders on Ware which he gave the plaintiff, they prove nothing as to the contract. One of them (which was rejected by the judge) was drawn on *account of some plank furnished by Vogdes to the defendant. Other orders in favour of the plaintiff on the defendant are spoken of by Vogdes; but these orders, if for money due by the defendant to Vogdes, and if accepted and paid (which is not pretended) would not discharge the assumpsit of the defendant but for their amount, to which the plaintiff could not object, as every creditor is willing to receive his money even before it is due. Vogdes, in another part of his evidence, says that the ■plaintiff told him he did not consider the debt to be his, but the debt of Ware the defendant, and refused to take his note for the amount; but the account was kept in the books of the plaintiff in the name of Vog-des. This would be a strong circumstance to prove that the plaintiff held Vogdes bound for the amount, but for the explanation given by Duke, the witness who kept the books. •He says, there were other accounts kept in the books, in the names of others for whom .Ware the defendant was held solely bound, which were not objected to by the defendant.

In all this evidence there is nothing to prove that V ogdes was expressly or impliedly bound to pay for the articles delivered to him by the plaintiff on the assumpsit of the defendant to pay for them, or to change the character of his assumpsit as stated by Vog-des. The contract of Vogdes was with Ware the defendant to build him a house, and not with the plaintiff. It is a well settled principle that where the party to whom goods are delivered on the promise of a third person to pay for them, is bound to pay for them, the assumpsit is not direct but collateral, and, if not in writing, within the statute of frauds: and the converse of the principle is also settled. In the case before us, I think it very clear that Vogdes was not bound to pay for the articles delivered to him. On the evidence in the demurrer, I think that a jury ought to have found a verdict for the plaintiff, and that no new trial ought to have *been awarded,if asked for. If the terms of the contract had been less strong, yet on the ground of the utter improbability that, in the circumstances of Vogdes as proved by the evidence, the plaintiff would have given him any credit, I think such a verdict ought not to have been set aside. I have examined many of the cases, but shall only quote one, to prove that the assumpsit of | Ware the defendant was a direct assumpsit, and not a collateral promise within the statute of frauds. It is the case of Dixon and other assignees of Moore v. Hatfield, an action of assumpsit on the following agreement : “I Richard Hatfield do agree to pay mr. J. Moore £50. for timber &c. out of money that I have to pay Wm. West, provided West’s workis completed.” At the trial before Best, chief justice, it appeared that West had undertaken, for a certain sum, to complete the carpenter’s work on the house in question, and find all the materials, but being delayed for want of credit or funds to procure timber, it was supplied by Moore, on the defendant’s signing the above agreement. The jury found a verdict for £50. and Vaughan, Ser-jeant, moved for a rule nisi to set it aside, on the ground (among other objections) that the agreement was in effect a guarantee to pay Moore in the event that West failed to pay him, and if it was a guarantee, the consideration for the defendant’s undertaking was not sufficiently expressed. But the court were clear that this was not a collateral but a direct undertaking, and the rule was refused. It is true, the agreement in this case was in writing; but I quote it to shew the character of the assumpsit of the defendant in the case before us. The circumstances of the two cases are very similar. The person for whom the agreement in the case cited was made, wanted credit: so in the case before us. In England, the statute of frauds requires a consideration though the promise be in writing ; under our statute, all that is required is that the promise should be direct *and not collateral, not a guarantee, and then no writing is necessary. Compare the words of the agreement in Dixon and others v. Hatfield, with the words used by Ware the defendant and addressed to the plaintiff, as proved by Vogdes, and I think it impossible to doubt that his assumpsit to pay for the articles to be delivered by the plaintiff to Vogdes was a direct and not a collateral promise.

On the whole, I think the judgment of the court below was correct and ought to be affirmed.

TUCKER, P. I concur in reversing the judgment, and entering judgment for the defendant on the demurrer to evidence.

Judgment of circuit court reversed, and judgment entered for the demurrant to evidence.  