
    McADAM et al, Respondents v. VALLENTHIME et al (Bellemare, Appellant.)
    (167 N. W. 171.)
    (File No. 4090.
    Opinion filed March 26, 1918.)
    .1. Statute of Frauds — Partner’s Promise to Pay for Copartner’s Purchases, Whether Void.
    In a suit by storekeepers to recover the value of goods sold to a defendant member of a partnership, and to enforce alleged liability of the co-detfendant upon an oral promise to pay therefor, held, that the oral promise of the co-partner to pay for said goods out of his co-partner’s share of seeds .sold by the firm in the course of their general partnership business, when returns fro-m said sales were received, but not otherwise, was void under the ¡S-tatnte of Frauds.
    ■2. Same — Oral Promise Preceding Transaction of Sale to Copartner, Whether Within Statute.
    An oral promise or guarantee of payment for goods sold to a co-partner of promisor, which is a part of, or precedes an original transaction of sale, and which induced delivery of the goods, is within the Statute of Frauds.
    :3. Same — Oral Promise Collatex-al to Third Person’s Continuing Obligation, Effect — Consideration, When Material.
    An oral promise- or guarantee which is collateral to a continuing obligation of a third -person, is void under Statute of Frauds, even though made upon sufficient consideration; but the consideration is material only when the promise relied upon, and the transaction in which made, are such as to make promisor the original debtor, and not a guarantor of the subsisting obligation c-f the third person.'
    
      Appeal from Gkeiuit 'Court, Gustar Cclunty. Hon. Levi McGee, Judge.
    Action by Robert McA'dam and W. F. McAdiam, copartners as Me A'dam Company, against John Vallenthime and Ernest Bellernare, copartners as Bellemare & Vallentoiirae, and Ernest Belle-mare, to recover for value loif goods sold by plaintiffs to defendants. From a judgment for plaintiffs, and from an order denying a new trial, defendant Ernest Bellemare appeals.
    Reversed.
    
      P. W. Sellers, and Buell & Denu, for Appellant.
    
      Percy H. Helm, fiar Respondent.
    (i) To point one of the opinion, Appellant cited: Wood v. Dodge, 23 S. D. 95; 120 N. W. 774; Clapp v. Webb, 52 Wis. 638; 9 N. W. 796.
   SMITH, J.

Plaintiff’s firm', who are respondents here, kept a general store at Cusiter City. Defendant’s firm, composed of Vallenthime & Bellemare, who is appellant, were engaged in the seed business a't Custer. Merchandise was purchased at respondent’s store both by Vallenthime and on joint account of Belle-mare anid Vaáletoime. The merchandise purchased on joint account of Bellemare and Vallenthime wais delivered to certain catnips in which Vafflentbime and Bellemare were jointly interested; 'the balance of the goods sued' for were delivered to Vallenthime for his family use. Respondent sued appellant’s firm, seeking to hold .the firm responsible for the unpaid portion, of Vallentoime’s share of the goods delivered to the camps 'and for all the goods delivered to Vallenthime for his family use. The complaint alleges that the goods slued far were sold and' dleliivered to the firm iof Valllenthimie & Bellemare 'through an agreement with Bellemare. For the purposes oif this appeal we can only look to the state of the evidence at toe dBase of toe trial. The evidence, ail of which' was received without objection, so far as the record' discloses, show® that the case was tried upon questions of fact which depart entirely from the issues made by the pleadings. At the trial it was conceded that but O. small part of the goods sued' far, those Sent to toe Camps, were delivered on joint account, and that by agreement with plaintiff, Bellemare’s share of toe goods were charged to' him personally, .and that Vallentoime’s share of such goods were charged to his personal account. It was conceded- that all the other gaold© sued for were delivered to Vaiil'emtihime’s family and charged- to his personal account. The allegation in the icompí'ainifc that the goods sued for were delivered to die firm was in effect abandoned!.

Plaintiff McAldain testified as-follow©:

“Vallentbime wanted to buy some good© for his house and camps. I would not sell him any goods until' Belenmne guaranteed the account. -Mr. Bellemare told) me to let him have the goods; that they were partners- in the seed business and were shipping seed, and he would pay these accounts/’ when he got returns from seeds shipped.

Donaldson, M'cAdam’s clerk, .testified that Bellemare -said he wanted to pay life share as he Went along, and' that if we wanted to charge the rest to» V'al-len-tiliime, he would s-ee that it was paid when there was money from the proceeds, of the seed business; that this .conversation related to the firm account, but that Belle-mare said he would pay the family account the s-ame way. Bfellernare testified that this -conversation had reference only to the joint account for good's delivered to the camp©, and denied that he had ever promised to pay for the goods charged to Yallenthime’s personal account. S-o far as -this' conflict in the evidence is concerned we must assume that it was resolved in plaintiff’s favor, and that the fact wits as McAd’am stated it, namely, that defendant Bellemare promised to pay Vallenthime’s personal account out -of Vallenthim-e’s share of seeds sold 'by the firm, but w-aa not to -be called -upon to pay until returns from seed sales were received. The real question presented is whether this oral promise will sustain a -readvery by • plaintiffs. This court in several decisions has held such a promise void under the statute of frauds. Wood v. Dodge, 23 S. D. 95, 120 N. W. 774; Sprick Bros. v. Whipple, 33 S. D. 287, 145 N. W. 559; Hepner v. Wheatley, 34 S. D. 338, 148 N. W. 594.

The suggestion of counsel that an oral promise or guaranty of payment for goods- -which- is a part of, -or precedes, the original transaction of ©ale, anlcll whi-db imidluced diel'ivery -of the goods, :is not within the statute of frauds- is not in accord with these decisions, in some of which an oral promise -held void was made prior to the delivery of the goods and was alleged to be the inducement therefor. The test appears to be that an- oral promise oir guaranty wihiiich is collateral to' a continuing obligation of a third person is void under the statute, even though made upon .a sufficient consideration. But the question of consideration becomes material only when the promise relied upon and the transaction in which lit is miaidle are such as to make the promisor the original debtor, and not a guarantor of the subsisting obligation of a third person. Under tine evidence in the record it is conceded itlhiat the goods 'delivered! to Vallenthime’-s family were charged to his personal .account, amidi that such indelJtedness still remains. It is therefore impassible to view Bellemare’s promise as other than a promise to pay an indebtedness of Vallentbime which still exists.

The evidence is wholly insufficient to sustain the verdict, and the order and judgment of the trial court are therefore reversed.  