
    
      George W. Brown ads. Kinloch, Phillips & Co.
    
    1. Defendant verbally authorized plaintiffs, ¡who were merchants, to let a third person have a certain amount of goods,-and that he would guarantee the payment. The goods were delivered to sutih third person; but the charge on plaintiffs’ books was to the defendant for him-. Held-, that plaintiff was not a competent witness; to charge the defendant*
    2. If the book entry of a merchant or tradesman does not prove a liability, and some additional evidence be necessary to charge a defendant, such additional evidence must be supplied by some other witness than the merchant or tradesman.
    3. The verbal guaranty of defendant being collateral, and an undertaking to answer for the debt or default of another; was not binding.
    
      Tried in the City Court of Charleston, April Term¡ 1842, before his Honot the Recorder.
    
    This Was ail action of assumpsit for hay, corii and oats, said to be furnished by the plaintiffs to defendant.
    The following is the evidence:—
    
      Geo. F. Kinloch, sworn. — Produced and proved the books of plaintiffs; charge is to Geo. W. Brown for W, T. Hieronymus.
    
      Cross-examined. — He said these are the books of original entry. The entries are in his hand Writing. After 54 bales of hay had been sent, Hieronymus said he would take the difference between that aild 100 bales; in oats— (it will bo proper hereto state, that defendant, at the opening of the case, admitted that he had áuthorized plaintiff to let Hieronymus have 100 bales of hay, and he Would guarantee the payment; but as plaintiffs had chosen to sue him, he denied his legal liability.) The account commences 9th February, and ends 15th February, 1841. There is another account in the books agairist Brown in his individual name, kept separate from this! His individual account was in existence on 23d December, 1841. On 20th May, there is an entry on Brown’s individual account for peas and bran; his individual account is still open.
    
      Thomas O'Brien, sworn — He said he knew Hieronymus in 1841; believes at that time he had no credit with Kin-loch, Philips & Co. Witness here produced the pass book between Hieronymus and plaintiff, kept by Hieronymus himself, in which the subject of this suit is charged as delivered to Hieronymus. This book has been in witness’s possession since Hieronymus went away, which was in the spring of 1841.
    In reply — he said the Stables kept by Hieronymus belong to Brown. Hieronymus owed a great deal of money. In January, 1841, Hieronymus was in Savannah, and his stables in want of hay; Kinloch, Phillips & Co. refused to furnish it; witness induced them to send a little. Witness was once a partner of Hieronymus dissolved 1st January, 1841; before the dissolution, he took other stables.
    Here the plaintiff closed his case; defendant’s counsel moved for a non-suit, on the ground that the books did not prove thé case; the Recorder thought the books were prima facie evidence of the delivery to Brown, and refused the motion; but states that the bearing of the pass book tipon the case did not occur to him, nor was it suggested by counsel, or he would have granted the nomsuit
    Defence.
    
      John Brady, sworn. — Testified he is clerk to Brown. In the account filed with the summary process brought by plaintiff against defendant, there is a credit of $232 51— date of credit, 25th March, 1841. Witness called on plaintiff in April, 1841, for the payment of defendant’s account. Brown’s account at this time exceeded Kinloch, Phillips & Co’s. Kinloch said he had a laiger account to discount, for articles furnished to Hieronymus. Witness told him he ought to apply to Hieronymus for payment first. He said it was no use to apply to him; he did not think he could pay it.
    Here the testimony closed.
    His Ilonor charged the jury, that the books were prima facie evidence of delivery; that is, that they had a right to presume that the goods charged, were delivered to Brown, unless that presumption was rebutted. That it appeared to him, that the pass book produced by plaintiffs themselves, proved that, the goods Were delivered to Hieronymus, and not to Brown; that the presumption was rebutted, and the books should be discarded. That if the defendant was liable at all, he must be so on some special agreement to pay the debt of Hieronymus; that there was no evidence of such agreement, and that the defendant was entitled to a verdict.
    The jury rendered a verdict for plaintiffs for a part of their account.
    The defendant appealed, and now renewed his motion for a non-suit.
    1st. Because the plaintiffs’ testimony proved a special contract, if any thing; and his book, which was really his only testimony, is not competent evidence to prove a special contract.
    2d. Because a merchant’s books are only competent evidence to prove delivery, prima facie, but the plaintiff’s own testimony proved that the delivery was-to Hieronymus, so that there was no evidence whatever to charge the defendant.
    And if that motion fail, the defendant will move the said court for a new trial on the same grounds; and also,
    3d. That there was no evidence of any original undertaking by the defendant, but on the contrary, the evidence of the witness Brady proved that plaintiffs themselves regarded his undertaking as collateral and not original.
    4th. That there was no evidence to sustain the verdict, but the same is manifestly founded on the admission made by defendant, that he had agreed verbally with the plaintiffs to guarantee the purchase of 100 bales of hay by Hieronymus.
    5th. That the verdict is arbitrary, because if upon the evidence the defendant is liable for any part of the amount sued for, he is liable for the whole.
    6th. Because the verdict is altogether contrary to law and the evidence.
    
      Petigru and Lesesne, for the motion. Phillips, contra.
   Curia, per

Evans, J.

The book entries of merchants or tradesmen, when proved by the oath of the plaintiff, establish nothing more than that the goods were sold and delivered as stated in the entry, and if that be sufficient to charge the defendant, no other evidence need be offered, as if the goods be charged to the defendant as delivered to himself. But if the entry itself does not prove a liability, and some additional evidence be necessary to charge the defendant, such additional evidence must be supplied by some other witness. The plaintiff is a competent witness for no other purpose than to verify his entries. Thus if the charge was that the goods were delivered to order, the order must be produced, or its loss shewn. So, also, if the charge be that the goods were delivered at the request of the defendant, to a third person, the request or direction of the defendant to charge him with the goods so delivered, must be proved by the oath of some other witness than the plaintiff. This was fully settled in the case of Deas ads. Darby, 1 N. & McC. 436. In that case the plaintiff, who was a tailor, had debited the defendant with clothes made for and delivered to his ward, Richard Gough, and the plaintiff alone was called to prove the account ; it was decided that he was not a competént witness to prove the delivery of the clothes to Gough, at the defendant’s request. fihere was, therefore, an entire failure-of proof to charge the defendant with the hay delivered to Hieronymus, by any competent witness, and by his admission that he had authorized the plaintiff to let Hieronymus have 100 bales of hay, and he would guarantee the payment, he bound himself by no legal obligation. The guarantee is not an original undertaking. It is collateral, and an undertaking to answer for the debt or default of another, which by the statute of frauds must be in writing.

A new trial, therefore, is granted.

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