
    Joseph Leland vs. John M. Creyon.
    vf the person for whos» use goods are furnished be liable at all, any pro mise by a third person to pay that debt must bs in writing, othern iso it is void by tile statute of frauds, 
    
    Where the defendant being present with L. in a store, verbally promir ed to be responsible to the merchant for what goods he might ht u have, and the merchant let L. have goods, and charged them to L, in his books, and afterwards was paid part by L. the pro.tnise is void tinder the statute of frauds; although the merchant made the follow, ingmemorandwtnin his book, vis. “The above articles were delivued to L. who was introduced by J- M. C. who agreed to be responsible for what Mr. L. may want in merchandise. Credit was given on said C. becoming responsible.” 
    
    m ■JL iilS was an action of assumpsit, for goods sold and delivered to one Matthew Leonard, at defendant’s request.
    1 Itere was no promise in writing by the defendant.
    The witness on the part of the plaintiff, proved the delivery of the goods to Leonard,, who was charged with, them in plaintiff’s books. He heard plaintiff tell Leonard that he would not sell to him unless he obtained security. ■ After-wards the defendant came there with Leonard, and Leonard selected the goods which were, delivered to him to the value of $5436'72 1-2. But the witness did not lu ar defendant ass tune any responsibility, though be understood from plaintiff and Leonard that Creyón was to be responsible.
    There was a memorandum made by the plaintiff, one or two days after the sale and delivery of the goods, in the margin of his book, where the account against Leonard was, in the following words : “ The above articles were delivered to Matthezu Leonard, who was introduced by John M. Creyón, who agreed to be responsible for what Mr. Leonard may want in merchandise. Credit was given on said Creyón becoming responsible.”
    Here the plaintiff closed his testimony, and the defendant moved for a non-suit, on the ground that the promise by defendant for the debt of Leonard, not being in writing and for good consideration, was void by the statute oí frauds.
    The presiding Judge overruled the motion.
    The defendant then gave in evidence a letter from the plaintiff to him, in which he stated “ that all his endeavors to get the balance due him’ from Leonard had failed ; he would thank the defendant to forward said balance of fj 236 32. That he had done every thing to get it from Leonard.. but had given it up altogether.' 'fliat he had just ground for calling on defendant, as he, defendant, took Mr. Leonard by the.hand and said, whatever Mr. Leonard might want of plaintiff, he, defendant, would be accountable for to plaintiff. That on this and no other principle was credit given Leonard. He therefore requested defendant tc pay over the balance of Leonard's debt.
    Here the defendant closed, and contended that the sale and delivery were to Leonard and not to defendant. And as defendant had only promised to pay Leonard's debt, such promise not being for valuable consideration and in writing, was void by the statute.
    The case- was tried before Mr. Justice Colcock, May term, 1820, for Charleston district, who in his charge to the jury stated, that if they' believed the goods -would noi haw- been delivered to Leonard without the defendant’? promise, the credit was given to-tbe defendant, and not to Leonard, and consequently the promise was not collateral but original, and not within the statute ; and that the memorandum in the margin of the'book was simultaneous with the entry, and explained to whom the credit was given, and he thought the defendant ought to be held responsible.
    The jury accordingly found a verdict in favor of the plaintiff, for 236 82, the balance of the account*
    The present motion was made for an arrest of judgment, and for leave to enter up judgment on nonsuit against the plaintiff; as the promise of defendant to be responsible for the debt of Leonard should have been in writing; and not being so, the action could not be sustained. But should the court be of opinion that the defendant was not entitled to a nonsuit, then a motion for a new trial is made on the following grounds, viz.
    1st. Because the promise of defendant not being in con-' formity with the second- branch of the 4th section of the statute of Frauds and Perjuries, was void.
    2d. Because the charge of his honor was erroneous in two material points, and influenced the verdict of the jury. Namely,
    1st. In stating that if the jury believed the goods would not have been delivered to Leonard, without the promise of defendant, the credit wras given to defendant and not to Leonard; and,
    2ndhT. That the memorandum in the book was simultaneous with the entry, (though made a day or two after,) •and zeas evidence of the credit being given tQ defendant, though Leonard zuas charged in the said books,
    
    
      
      
         See Matson vs. Wharam, 2 Term. Rep. 80. Anderson vs. Heyman, 1 H. Blac. Rep. 120. 1 Salk. 27. Buckmyer vs. Darnell, 2 Lord Raymond, 1085. 1 Sound. 211 a. n. 2.
    
    
      
      
         Quere. — Ti the memorandum in plaintiff’s booh should have been admitted in evidence ? In the case of Pritchard vs. Me Owen, 1 Jloii Sd McCord, 131, in note, the Court decided th'at boohs were not admissible to prove a special contract. And in this case, Creyón’s promise, if jt belonged to any denomination of undertakings, was a special contract ¿ and he could only be liable upon that contract. (See 1 Sound. 211 a. n. 2. Butcher vs. Andrews, 1 Salk. 23. Marriott vs. Lister, 2 Will. 141, &c. The issue would have been upon the assumption of such a contract. The evidence, of course, must have been to that issue. And to have proved the issue would be to prove a special contract; which, by books, is contravy to the law laid down in Pritchard vs. McOwen. But its inadmissibility seems still stronger, when it is observed that it-'was not written with the original entries, but two days subsequent.
      Now,'although the contract, after the goods were delivered, might be considered so far executed on the one part, as to raise by operation or construction of law, a new promise to pay by the immediate party interested, as if a man agree to build for another a house, for which he is to be paid, and afterwards builds the house according to the agreement, and he thereby gains two waj’s of declaring, either upon the original exe-cutory agreement, to be performed in futuro, or by indebitatus assumpsit or quantum meruit, upon the implied promise which arose when the house was actually built, and the agreement executed,- yet it is conceived that only the immediate party receiving (he benefit of the contract "could be so liable upon the, general assumpsit, and that no-such action could he sustained against a collateral person, who could only be liable by his express agreement, and not t>y any implication of law whatever, arising either from consideration received or any other cause. But even if an implied assumpsit could arise, yet it would be upon the proof of the original and special undertaking. Salk. 519. Lawes on Pleading, 91. R.
    
   Mr. Justice Gantt

delivered the opinion of the Court.

By the 2d branch of the 4th section of the statute of Frauds, it is enacted, “ that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person; unless the agreement upon which such action ••■hall 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 defendant relies upon this clause in the statute, as a shield against' the present demand. He insists that the plaintiff ought to produce a note in writing of this promise, as it was to pay the account of another.

It is answered,on the other side by saying that the credit was originally given to the defendant. And it certainly depends upon the insulat.d fact whether Leonard,, the person to whom the goods were delivered, was or was not made a debtor for them? If he was so debited, the alleged promise would be a collateral undertaking, and to all intents and purposes void by the statute. Leonard is certainly made a debtor in the plaintiff’s books for those goods ; and the letter of the plaintiff unequivocally admits that Leonard was credited upon the defendant’s becoming. responsible.

The only evidence furnished of such responsibility however is the memorandum made by the plaintiff in the margin of the book where Leonard is charged with the goods. This memorandum, so strongly relied on by the plaintiff, does of itself admit the fact that the credit was given to Leonard, upon the defendant’s becoming responsible. The plain and obvious interpretation of which is, that if Leonard did not pay, defendant was to pay.it for him.

Now admit that a memorandum of this kind was to have the effect contended for ; is it not seen at once that this branch of the statute would become a dead letter, and that the statute might in every instance be defeated by the mere act of the party concerned in interest? A party might do that for himself which no number of witnesses could establish in his behalf. ■

The law of the case therefore is, that if Leonard was originally liable to be sued for the goods delivered for his use, then the promise of the defendant, if ever made, would be a collateral undertaking, and void.

Now, it is clear that Leonard was a debtor, and mighf have been sued. If no credit was given to him, it may be. asked, why was the book camben d with an entry making him debtor i Why was not Creyón at once charged with the goods i The only correct answer is, that at most the plaintiff considered the defendant as collaterally responsible. Leonard was resorted to by the plaintiff as the debtor. Every exertion was made to obtain the debt from him, A part was secured. And it was only after all hope had vanished of gating the balance from him, that the defendant was called on.

One of the leading cases upon this branch of the statute is that of Buckmyer vs. Darnall, reported in Lord Daymond, 1085. In that case, the plaintiff declared that the defendant, in consideration that the plaintiff, at the request of the defendant, would lei to hire and deliver to one Joseph English, a gelding of the plaintiff’s, undertook and promised the plaintiff that the said English would deliver the said gelding to the plaintiff. It was insisted in that •case for the defendant, as was done here, that the plaintiff ought to produce anote in writing of this promise within the statute of frauds. The case was one of doubt. Holt, C. J. Gould and Powell, Justices, were at first of opinion that the case was not within the statute, because they tho’t that English was not liable upon the contract. Mr. Justice Powys, differed. The Chief Justice and his associates in opinion agreed, that if an)- trust was given to English, then the case would be within the statute, but they thought that no credit had been given to him. The case was more deliberately considered. The Chief justice advised with the Judges of the Court of King’s Bench, and it was finally determined that as English might have been charged on the bailment in detinue on the original delivery, the promise made by the defendant was collateral, and within the reason and words of the statute. Mr. Justice Holt, in delivering the opinion of the .Court, puts this case, a case strictly analogous to the one before us. “ Suppose a man comes with another to a shop to buy, and the shop-keeper should say, I will not sell him the goods unless you will under take he shall pay me for them; such a- promise is within, the statute.”

I say the Cases are strictly analogous, so far as can be judged of them from the book entries, and the conduct pursued by the plaintiff. What was really said to Creyón does not appear by the evidence ; but by no correct construction of the circumstances, can his responsibility be extended beyond the case put by Chief Justice Holt.

In Matson vs. Wharam, 2 Term. Rep. 81, the line as laid down by Judge Bidler, must be considered as the correct one ; which is, that 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, otherwise it is void by the statute. The same rule is recognized in Jones vs. Cooper, (Cowper, 227, and Appendix, No. 6.) That Leonard might have been sued, is unquestionable ; consequently Creyón1 s promise, if made, was within the statute.

No statute has been so much, and, in my opinion, so justly eulogized for its wisdom as the statute of Frauds. This branch of it tends to repress evil practices which would otherwise spring up to the insecurity of all. But for the salutary influence of this statute, thousands would tumble into ruin by having their estates taken from them to answer for the ■ debts, defaults, and miscarriages of others. So far therefore from believing that this branch of the statute of Frauds has a tendency to produce injustice and wrong, I think it the only bulwark of security to shield men from those evils which the statute was intended to remedy. Whether this was a case within the statute, and'required that the promise should he in writing to support it,, was a question of law. (See the case of Kent vs. Hutchinson, 3 Bos. and Pull. 232.) The Court are clearly of opinion that to make the defendant responsible in this case, the promise should have been in writing ; and no such evidence having been adduced on the trial, the presiding judge should have granted the ,non-suit which was claimed, It is the opinion of the Court that fcbe postea should be delivered to the defendant, with leave to enter up judgment of nonsuit in the case.

Justices Richardson, Nott, and Huger, concurred.  