Chase v. Day — 17 Johns. 114

Majority

p. 99

Chase against Day.

Headnote

á fe quired of the ⅛ he would let c\, have newspal l"¡(¡ 8⅜ being told’ the ¡¡¡™s’ calls for the {¡“^responsible the papers this was’ an original and&6- solute contract on the part of the defendant, and not a collateral agreement, for the debt or default of C,, and, therefore, not within the statute of frauds,

IN ERROR, on certiorari to a Justice’s Court.

Day brought an action of assumpsit against Chase, in the court below, for newspapers sold and delivered to the defendant below, who pleaded noil assumpsit. It was proved, that on the 1st ol January, 1816, Chase called at the printing oiiice ot Day, and inquired “ the terms on which the plaintiff’would let the nephew of the defendant have newspapers to sell and distribute, &c. as a news carrier.” The plaintiff stated the terms, to which the defendant below replied, “ if my nephew should call for papers, I will be responsible for the papers that he shall take.” The nephew of the defendant, soon afterwards, called at the office of the plaintiff for newspapers, and said, “ that his uncle, the defendant, would be responsible for upon which the plaintiff furnished him with as many papers as he wished to take, weekly, for about five months. No

p. 100

regular charge was made by the plaintiff in his books of account against the defendant or his nephew; but the plaintiff kept a written memorandum of the number of papers delivered weekly to the various post riders, and the name of the defendant’s nephew' appeared in that list, as one of the post-riders to whom the papers were furnished weekly.

On this evidence, the justice gave judgment for the plaintiff beloW for 25 dollars and costs.

Here wras a promise to pay for the papers by the defendant below, before they were delivered to a third person ; and the only question is, whether the credit was given originally and solely to the defendant. The evidence #lairly warrants the construction, that the credit wras so given; and, therefore, it is not within the statute of frauds, requiring a note in writing, in order to charge one person for the debt or default of another. This was never the debt of the nephew. His uncle made the contract; and the nephew, when he took the papers, explained that his uncle would be responsible for them. It was not a collateral agreement, but an original and absolute contract on the part of the defendant, for the price of the papers to be furnished for the use of his nephew. The judgment of the court below ought, therefore, to be affirmed.

Judgment affirmed,^[1] ^[2]

(a) (a) In Jones v. Cooper. (Cowper, 227.) Lord Mansfield took a distinction, that “ where the undertaking is before delivery, and there is a direction to deliver the goods, and I will see them paid for, it is not within the statute of frauds.” But m Martin v. Whatman, (2 Term Rep. 80 ) the court said, that distinction had been overruled. Though Buller, J., said, that the reason of Lord Mansfield struck him forcibly, and that if it was a new question, his mind would be the other way ; yet, now, the authorities were not to be shaken ; and “ the general line taken is, that, if the person for whose use the goods are furnished, be liable at all, any other promise by a third person to pay that, debt, must be in writing, otherwise it is void by the statute of frauds.” (Bull. JV. P. 280, 281, 282. 2 East's Rep. 325. 1 Hen. Bl. 120. Keate v. Temple, 1 Bos. <y Pull. 158.) The question is, To whom was the original credit given ?

(b) (b) So, where the plaintiff was endorser of a note made by B. for his accommodation, and B., who was also indebted to the plaintiff, having a sum of money and goods, with which he was ready to pay the note, &c., and to secure the plaintiff, it was agreed between the plaintiff, B., and the defendant, that B. should place the money and goods in the hands of the defendant, who should pay the note, &c., and B. accordingly delivered the money and the goods to the defendant, who thereupon undertook to pay the note, &c.: held that this was not a promise or undertaking, for the debt or default of another, within the statute of frauds; and the defendant having failed to perform his agreement, the plain tiff is entitled to recover damages for the breach of the contract. Olmstead v Greenly. 18 Johns. Rep. 12 . Farley v. Cleveland, 4 Cowen, 432. 9 Comen, C39 Chapin v. Merrill, 4 Wendell's Rep. 657.