
    
      Kinloch, Phillips & Co., vs. George W. Brown.
    
    If a merchant’s book of original entries show that the goods charged to defendant were delivered to a third person, the entries, supported by plaintiff’s oath, are not, of themselves, enough to charge the defendant. The order, direction, or request, of the defendant, must be proved by other evidence.
    Plaintiffs, on the verbal promise of the defendant to be security for B, and to see plaintiffs paid, delivered goods to B, and charged them to defendant. Held, that defendant’s promise was collateral, and void by the statute of frauds.
    Where the facts testified to, admitting all to be true, make a case within the statute of frauds, the presiding judge may order a non-suit in invitum.
    
    
      Tried in the City Court of Charleston, April Term, 1844.
    This was an action of assumpsit for goods sold and delivered. It was first tried in April, 1842, when the plaintiffs had a verdict, which, on appeal, was set aside ; 2 Sp. 284. The plaintiffs’s book of original entries, sworn to by one of the plaintiffs, was offered and received in evidence. The entry was as follows.
    Mr. George W. Brown, for William T. Hieronymous,
    Bought of Kinloch, Phillips & Co.
    1841,
    Feb. 9, 300 bushels of corn, 58 $174 00
    
      “ “ 54 bales hay, 16 — 155 $1 161 55
    Drayage, 18 loads, 18 3-4 3 88
    William T. Hieronymus testified, that in 1841 he was the keeper of Livery Stables, and his credit with plaintiffs having stopped, defendant, knowing that he had no credit with plaintiffs, authorized him to go to plaintiffs to purchase hay and corn. He accordingly went and purchased the corn and hay charged in the plaintiffs’s book. He did not tell plaintiffs to charge them to defendant, but the understanding was, defendant was to pay for them. He understood it to be his, (the witness’s) debt, and if he did not pay the amount to plaintiffs, defendant would have to pay it. On his cross-examination he said that the defendant proffered his services as security, and that he explained to one of the plaintiffs, Mr. Kinloch, that defendant was to be security, and would see him paid. The pass book of the witness was produced, in which the articles were entered as follows.
    “George W. Brown for W. T. Hieronymus.”
    His Honor, the Recorder, ruled that the defendant’s undertaking was void by the statute of frauds, and granted a motion for a nonsuit.
    The plaintiffs appealed, and now moved for a new trial, on the following grounds.
    1. Because it was clearly proved, that the defendant authorized the witness to purchase, and on this authority he purchased the corn and hay, on the defendant’s credit, and that was evidence sufficient to warrant the case being sent to the jury.
    2. Because the charge against the defendant in the witness’s pass book, corroborated by the plaintiffs’s original entries, showed that the credit was given exclusively to the defendant, George W. Brown.
    3. Because, whatever may have been the understanding between the defendant and his agent, the plaintiffs are not to be affected or prejudiced by it, unless it was proved that they knew of this understanding previous to the sale.
    4. Because thé entry in the book shewed that the sale was made, and the credit given, alone to the defendant.
    
      5. Because, from the facts submitted, it was a case proper for a jury’s decision.
    
    
      Phillips, for the motion.
    The case now made, is not the same as it was on the first trial.
    The right of jury trial is secured by the constitution, and wherever, there is a particle of doubt, either party has a right to submit his case to that tribunal. This is the rule in England, 2 T. R. 281, and a fortiori it exists in this State.
    The true enquiry is, to whom was the credit given 'l If it was given to the defendant, and that is a question for a jury, then the defendant is liable; 7 Har. & John. 391; 1 Gh. on Con. 507; 1 Esp. 121; 20 Pick. 467 ; 19 Wend. 423 ; 4 McC. 409. There must be a double remedy, or the case is not within the statute ; 3 Hill, 44; Story on Con. 30. Hieronymus was the mere agent of defendant; 2 Kent, 614, 630 ; 2 Hill, 295; 12 Ves. Jr. 352.
    
      Petigru, contra.
    It is said that Hieronymus was defendant’s agent to buy the corn. Was he the agent to feed it away 1 Was it Brown’s corn after it was bought ? The delivery to Hieronymus made him the debtor. This is the presumption of law, and it was the plaintiffs’s business to rebut the presumption, by proving the agency, if any such existed. But it is clear, from the facts, that there was no agency.
   Curia, per

O’Neall, J.

In this case, we concur entirely in the opinion of the Recorder. When this case was before the court at its last term in Charleston, it was held that the plaintiffs’s entries were not,- of themselves, and supported by the plaintiffs’s oath, enough to charge the defendant. For when goods are delivered to a third person, at the request of the defendant, the request or direction of the defendant must be proved ; 2 Spears, 284.

On this occasion, that has been attempted to be done; and if it had been shewn that the goods were, in pursuance of Brown’s direction, delivered to Hieronymus, without any liability on the part of the latter to the vendor for the price, then there is no doubt that Brown’s undertaking would have been original, and not collateral. From Hieronymus’s testimony, however, it is very apparent that the purchase was for himself, the debt was his own, and Brown was to pay it, and if he did not, defendant would. This, beyond all doubt, is collateral, and the promise, not being in writing, is void by the statute of frauds.

This, however, it is said, is not the sense in which the plaintiffs understood it; and in support of it, their entries are appealed to; but, it must be remembered, their entries are evidence of nothing, save the fact of delivery of the specified articles, and their prices. On whose credit (where the person’s liability is the question) they were delivered, must appear aliunde. The testimony of Hieronymus is, that he explained to Mr. Kinloch that “the defendant was to be security and see him paid.” This is enough for that view of the case. But if Brown’s promise was only collateral, and the plaintiffs thought proper to consider it as original, that will not help them. The defendant’s liability is to be tested by his undertaking. This is stated again and again by Hieronymus to be, that if “he, (Hieronymus) did not pay the amount to the plaintiffs, Brown would have it to pay.” But plaintiffs’s counsel contended that this was a question of fact for the jury. Whether the facts proved made a case within the statute of frauds and perjuries, was a legal question. All the facts proved were to be .taken as true, and if, upon them, the Judge below thought, (as he did) that the promise was collateral, then he had the right to order a nonsuit.

The motion to reverse the Recorder’s decision, is dismissed.

Richardson, Evans, Wardlaw and Frost, JJ, concurred.  