#### *Smith Scudder *against*Jonas Wade.

in ERROR.

Exception court

Statute of frauds.

Promise to SeBvered^o61' another. (b)

WADE sued *Scudder*in the Common Pleas of *Essex*county. Upon the trial of the cause, a bill of exceptions to the charge of the court was sealed, and it was brought , , ., „ here by writ of error.

*283The declaration contains thirteen counts. The first count is in the usual form, in assumpsit, for goods, wares, and merchandise, sold and delivered. 2. A *quant, val.*3. Paper sold and delivered. 4. *Quant, val.*5, 6, and 7. JMonoy counts. 8. In consideration that plaintiff'would sell and deliver to one *R. Canfield,*on credit, such goods as he should have occasion for as a printer, of the plaintiff, in his trade as a paper maker, defendant undertook to be accountable for them, and avers that he delivered goods to the value of 500 dollars, at four months credit; that day of payment is past; that *Canfield*did not pay, and defendant had notice. 9. In consideration that plaintiff would sell and deliver to *Canfield,*all such supply of paper as he should have occasion for, of the plaintiff; the defendant promised to be accountable for the same, at four months credit, and avers sale and delivery to *Can-field,*of 100 reams for 500 dollars; that time of payment was passed; *Canfield*had not paid and defendant had notice. 10. That defendant was indebted 500 dollars, for goods &c. bargained and sold to him, and under and by virtue of the bargain delivered to *Canfield.*11. In consideration that he had sold other goods to defendant and by virtue of the bargain, delivered the same to *Canfield,*defendant undertook to pay, what he reasonably deserved to have, *viz.*500 dollars, &c. 12 and 13. Like the 11th and 12th, for goods sold to defendant and delivered to *Mervin Hale.*

To all these counts the defendant pleaded *non assumpsit.*

At the trial, the plaintiff, by three of his clerks, proved his books of original entires, *viz.*his waste-book, day-book, and leger; but these clerks were not those who made the entries against the defendant, except one item by one of them, and he could not recollect by what authority he made it, having no knowledge of any bargain or contract between the parties. *E. Stites,*the clerk who made all the entries except one, was not called by the plaintiff. The books were then given in evidence ^without objection. By them it appeared that the defendant was regularly charged, at different times, with paper amounting to 350 dollars, 75 cents, and was credited for paper returned, 17 dollars, 60 cents; for cash paid by *Canfield,*40 dollars, and *284cash by defendant, 39 dollars ; in all 96 dollars, 60 cents; a balance of 254 dollars, 15 cents. The plaintiff aiso proved, that in *July,*1814, *Mervin Hale*applied to him for 24 reams of paper, but he refused to let him have it without security. That *Hale*then called on defendant to assist him in getting it, and defendant said he had no doubt it could be had if he could see the plaintiff; that a few days after, the 24 reams were sent by plaintiff to *Hale,*and *Hale*afterwards paid defendant 132 dollars for them. These 2 i reams were a part of the paper charged by plaintiff to defendant, and defendant admitted that the 39 dollars paid by him were for this paper, and that he was accountable to the plaintiff for the balance of the 132 dollars. Plaintiff also produced and read to the jury,a letter written by the defendant to him, in the words following, *viz.*

*“Elizabeth-Town, December*11, 1813. Jonas Wade, *esq.—Dear sir,*

*The paper which I took from your mill yesterday, proves to be of the right size, and Iivant you,to send to the house of Mr. Canfield, in Elizabeth-Town, by Tuesday or Wednesday next at furthest, twelve reams and one ream of foolscap paper, and charge the same to me. If you should not have as much on hand at this time, a less quantity will do. We shall take our whole supply of paper of you, and make payment after four months credit, andsooner if convenient.*

*Your humble servant,*

*Smith*Scudder.”

In the plaintiff’s account, one ream of paper at 4 dollars, 25 cents, was charged on the 11th of *December,*1813. On the 15th of *December,*six reams at the same price, and three reams of foolscap at 4 dollars each.

The defendant proved, by *E. Stites,*that he was the clerk who made the entries in plaintiff’s books; that the paper, except the twenty-four reams for *Hale,*and the ream taken by defendant, were all sent to *Canfield,*editor of the *Essex Patriot*in *Elizabeth-Town;*that it was charged and sent on the faith of the letter before mentioned, the plaintiff considering it sufficient *for that purpose ; that about the 8th of *October,*1814, the plaintiff directed him to go and settle the account with *Canfield,*get his notes *285for lino balance and carry them to defendant to be endorsed by him; that he did settle the account as he was directed, and took two notes for the balance ; one for 100 dollars, the other for G3 dollars, 13 cents, payable at the *State Bank*in *Elizabeth-Town;*took them to defendant, who refused to endorse them, and said he was not liable. Shortly after this, plaintiff sent him (Stites) to the defendant with a copy of the account to demand payment. The plaintiff seemed surprised at the demand and refused to pay it, but offered to pay for the 24 reams had by *Hale,*if he (Stites) would receive it and discharge him from the account, but *Stites*would only receive and credit it on the account generally. *Stites*also proved that *Canfield*had applied to plaintiff for the paper, before the date of plaintiff’s letter, but plaintiff had refused to trust him.

The defendant also read a deposition of *Russell Canfield,*which stated that the paper in question was delivered to him by plaintiff in virtue of a contract between *Canfield*and plaintiff, and on the sole credit of *Canfield.*This deposition was taken' under a commission, *Canfield*having failed a short time after the delivery of the paper and removed into the state of *Connecticut.*The two notes mentioned by *Stites,*as signed by *Canfield*in favour of *Scudder,*and which *Scudder*refused to endorse, were produced by the plaintiff in pursuance of notice, and read to the jury.

The defendant then asked the court to charge the jury, that he was not liable on his letter, read in evidence, for any more of the paper than the ream taken by him and charged the 11th of *December,*1813, and the six reams charged the 15th of *December,*1813, and one ream of foolscap paper charged the 15th of *December,*1813.

The court charged the jury that if, from the evidence in the cause, they believed that the credit was given originally to the defendant by the plaintiff, that they ought to find for the plaintiff the whole amount of the paper before stated. And the court did further charge that the said letter of the defendant justified plaintiff in charging to defendant the paper delivered to *Canfield*on the faith and credit of that letter. If therefore, the jury *286believed the testimony of *Stites,*that the paper was so it was *their duty to render a verdict for the plaintiff for the amount of the paper in question ; but on the contrary, if they believed the testimony of *Can-field,*that the paper in question was delivered to him by plaintiff in virtue of a contract between plaintiff and *Canfield,*and on the sole credit of *Canfield;*then as no paper would appear to have been delivered by virtue of the authority contained in the letter, (except seven reams of a parcel particularly ordered) the letter could not operate to charge defendant with the paper afterward delivered by plaintiff to *Canfield,*except the said seven reams; to which charge of the court, in the several aspects thereof, the defendant excepted, and also excepted to the refusal, of the court to charge in the manner by him called for, and bills of exceptions were sealed.

The jurj>' found a verdict for the plaintiff for the whole amount of the paper charged to defendant. The case was brought up by writ of error, and argued at *May*term, 1818.

Upon the argument in error, the plaintiff *pro se,*relied upon the following points:

1. No part of the paper having come to the use of the defendant, there could be no implied promise, which lays out of the question, the general counts in the declaration. 1 *Blac. C.*162. When the terms of a special agreement are performed, *indebitatus assumpsit*will lie; but a man cannot be indebted to another for goods sold and delivered, unless the goods came to his use. 2 *Wils.*142.

2. The paper having been delivered to *Canfield*for his use, he was liable to *Wade,*and might have been sued upon an implied promise. 2 *Wils.*142. There was no evidence that *Canfield*knew of the letter ; he got the paper for his own use, and returned some that would not answer. He paid 40 dollars; and drew notes for the balance, after settling the account. He had the whole benefit, the value from which the promise must arise. In the language of the books, he took up goods of a tradesman, and the law concludes that he intended to pay for them.

3. Where ever the person to whose use the goods have been delivered, is liable at all, the promise and under*287taking of a third person is collateral, within the statute of frauds, and the promise and consideration must both be in writing. 1 *Saun.*211 *a.*3 *John.*210 ; and refering to 5 *East.*10, and 1 *Com.*on *Con.*103.

*4. When any count in a declaration is bad, and a general verdict is rendered, and damages entire on all the counts, the judgment is bad. 2 *Wils.*142.

5. The special counts in the declaration are bad, because they do not state the particular circumstances of the promise, or any consideration on which the promise was made. 1 *Lil. En.*17, 18, 19, 22. 2 *Went.*122. 1 *Saun.*211 a. 3 *John.*210, 14. 3 *Cain.*286. 7 *John.*321. A promise includes no consideration. The declaration ought to state the precise quantity and quality of the paper, and agree with the evidence.

6. There is a variance between the counts and the evidence. 8 *John.*253, 84. 3 *Gr.*235. 3 *Cain.*286. 7 *John.*321. 11 *John.*418. 2 *Lev.*85. *Thos. Ray.*202.

7. The court refused to give a proper charge, when called on, but did give an improper charge upon the evidence generally, and particularly upon the letter of the defendant. That letter did not authorise,the sending of more than seven reams, and they only were sent within the time specified. The term “ *we ”*does not make the defendant and *Canfield*partners in this transaction. The plaintiff himself has construed it as if it were *I,*having charged the defendant only, and not *Canjield.*Now, if it be *I,*then the words of the letter give no authority to trust *Canfield*to every extent, nor support the counts -which charge the goods sold to *Canfield*on the assumpsit of the defendant. The court ought therefore to have charged that this letter did not support those counts.

Again—A personal action once suspended is gone forever. Here the action against the defendant, if it ever existed, was suspended by giving the notes at sixty days. *Dyer,*140.

*Uornbloiver*and *Vanarsdale*for defendant in error, argued.

1. This case is not within the statute of frauds. The agreement is not to pay the debt of another who was originally liable. No debt existed on the part of Canfield. *288The plaintiff below had refused to trust him. It is an contract of defendant. He undertook to obtain the credit and thus created the debt. His letter is one of credit, or more properly, a continued guarantee. In the sale of goods, the criterion by which we determine whether the promise was collateral or original, is, to whom was the credit given ? and this is matter of fact, to be determined by the jury, from all the circumstances of the case. If goods be delivered to A. at request of B. a recovery may be had against B. and that on the general counts. 1 *Ld. Ray.*234. 1 *Saun.*211 *a. Bul. N. P.*280. 1 *Bur.*373. 6 *Mod.*249. Here the jury did determine the question of credit correctly. Nor is it true, that if the third person be liable, the promise is within the statute. In 3 *Bur.*1886, the tenant was unquestionably liable for the rent; yet the defendant’s promise was held to bind him. Besides, the peculiar phraseology of the letter justified the plaintiffin considering defendant as interested with *Canfield,*in the establishment for which the paper was furnished. And no objection can arise from his being sued alone. *G. Esp.*197. 5 *Mod.*213. *Comb.*362.

But, 2. If the case be within the statute, the letter is a sufficient agreement. In putting a construction upon it, any ambiguity ought to be taken most strongly against the writer; but we need not resort to this rule, for its terms are explicit. It is a full and complete assumption to pay. And as to the idea, that it contains no consideration, if it be not to pay a pre-existing debt, a want of consideration is no objection; but there is an ample consideration, in the delivery of the paper" according to the request, and the damage or risk of loss to the plaintiff. 1 *Saun.*211. 3 *Bur.*1673. 8 *John.*29. 2 *John. Ca.*52. 2 *Wil.*94. 4 *Oran.*235. 3 *John.*210. And if promise to pay be part of the original contract, want of consideration cannot be alleged. 8 *John.*2911 *John.*221. Again ■—the agreement to meet the statute, need only be signed by the party to be charged and accepted by the other. *Pat.*135. 3 *John. Ca.*60. 2 *Cain.*117.

3. If any of the counts be good, the recovery and judgment are right. *Pat.*261, sec. 61.

4. A court is not obliged to charge on a particular fact *289or state of facts. 1 *Cr.*813, 18. 6 *Cr.*233. The court did right in refusing to charge according to the request, - because it did not come up to the whole case. The letter construed most favourably to defendant, made him liable for fourteen reams.

5. The charge was correct in its general result. It is true, it did not notice all the facts upon which the plaintiff relied; but the party is not to suffer, if the court select a particular fact and declare that to be sufficient. If he is entitled to recover on the whole case, he is not to lose the benefit of his verdict, because the whole was not charged upon.

(b)

6) See *Hetfield vs. Dow, 3 Dutch. 440.*

*Kib,epate,ick C. J.

This is a writ of error founded upon a bill of exceptions taken at the trial of the cause in *Essex*Pleas. Many reasons have been assigned for the reversal of the judgment, and much learning has been displayed in the argument of them. The action was brought for a quantity of printing paper sold and delivered, and the only real question arises upon a certain letter offered in evidence on the said trial, and in the said bill of exceptions particularly referred to. This letter is in these words: *viz.*(See state of case.)

It was admitted that six of the twelve reams, therein particularly ordered, and also the ream of foolscap, were delivered to *Russel Canfield*within the time prescribed, and that they were therefore justly charged to the defendant, but as to the residue so delivered and charged, the defendant alleged that he was not liable on the said letter, and therefore called upon the court to charge the jury to that effect. The court, however, refused so to charge, and on the contrary charged and gave it as their opinion, “That if the jury, from the whole evidence in the cause, believe that the credit was given original^ *to*the defendant by the plaintiff, they ought to find for the plaintiff for the whole amount of the paper delivered; that the said letter justified the plaintiff in charging to the defendant the paper delivered to *Canfield*on the faith and credit of said letter; that if they believed, from the testimony, the paper in question was so delivered, they ought to find for the plaintiff the whole amount; but on *290the contrary, that if they believed the paper in question was delivered to *Canfield*on any contract between him and the plaintiff, and on the sole credit of *Canfield,*then they should find only for the seven reams admitted to be justly charged.”

Upon the most careful consideration which I have been able to give to this letter, when collated with the testimony contained in the bill of exceptions ; I can put no other construction upon it than that which the court below has given ; and therefore I fully concur with them in their charge.

In my opinion, therefore, let the judgment be affirmed.

Rossell J.

The delivery of a part of the paper sold to *Smith Scudder,*in connexion with his letter to the defendant in error, constituted a sufficient ground on which to charge him with what was afterwards delivered, as appears on his credit, to *Canfield.**The charge of the court was therefore correct, in my opinion. As to the objection that some of the counts in the plaintiff’s declaration were bad and that the jury found a general verdict, it is a case specially provided for in our statute. The plaintiff in error cannot prevail.

Southard J.

Several of the questions which were discussed at the bar, seem unimportant in a decision of this cause.’ It will be proper, only to notice them, in passing on to that upon which the rights of the parties rest.

1. I perceive no difficulty in the form of the declaration. Its tedious and technical length is its only fault. It has more counts than are necessary, and displays the accuracy of special pleading rather than a. cautious desire to save costs. I consider it correctly drawn, whether the undertaking of the defendant shall be found to be collateral or original; a promise under the statute of frauds or not.

2. The correctness of the court in refusing to charge as requested, depends upon the question whether the charge given was legal or proper ? If it was legal and proper, the refusal was necessarily right.

3. The execution of the notes by *Canfield,*can have no effect. It could not suspend the action, or right of action, *291by *Wade*against *Scudder. Wade*could not use these notes. They were made payable to *Scudder*or order; *Scudder*never received or endorsed them ; he refused all acknowledgment of and connexion with them. As to him, they were blank paper in *Wade’s*hands.

4. It is law, “ that any damage or possibility of a loss occasioned to the plaintiff by the promise of another, is a sufficient consideration for such promise, and will make it binding although no actual benefit accrues to the party undertaking.” 1 *Sawn.*211. 3 *Bur.*1673. 2 *Saun.*136. Whether therefore, this be a case within the statute of frauds or not, I have no difficulty as to the consideration of the promise. In either aspect the facts will be found to furnish a sufficient legal foundation to sustain the assumpsit.

5. The only question which demands serious attention, is the strict, legal propriety of the charge, as applied to the facts : and although this charge is not exactly in the shape in which it might *most advantageously have been put, yet I think it plainly subject to a better construction than the plaintiff in error has given it. The first clause is in terms, precise and specific; the last is perhaps, faulty in refering to the letter without expressly connecting the other evidence with it. But the amount of the whole, plainly is, ‘If the jury believe, from the letter in connexion with the other evidence, that the credit was originally given to *Scudder,*that the paper was sent to *Canfield*at his request and on his responsibility, they ought to find against him for the full amount: but if they believe that it was delivered in virtue of a contract with *Canfield,*and on his responsibility aiid credit, there ought to be a verdict for the defendant.’ If this be the charge, it affords no cause of complaint to the defendant. If *Scudder*ordered goods to be delivered to *Canfield,*he is answerable for their value, in the common form for goods sold. And if this be the fair import of the evidence, the case has nothing to do with the statute of frauds. That statute, *Pat.*136, requires the note or memorandum in writing, only where the defendant is to be charged with the debt, default or miscarriage of another. No such note is at all necessary where the plaintiff parts with *292his goods, upon the credit and undertaking of the deto pay ; no matter to whom they are delivered. The decisive question is, to whom was the credit given ? Who was immediately responsible? If the credit was given to the defendant, the statute is out of the question. 3 *Bur.*1886. Upon this point the court put it to the jury, and I think, put it rightly. Of that fact the jury is clearly and unquestionably the judge. *Bul. N. P.*281. 1 *Saun.*211. If any error is to be found in the charge, it is in not leaving it altogether to the jury, .hut in expressing an opinion upon it, which may have influenced their decision. But even if this were improper, it does not call for a reversal of the judgment, unless, upon the whole case, this opinion and the consequent verdict of the jury was erroneous. I do not perceive that there was manifest error in, either. The jury; no doubt, as they had a right to do, disbelieved *Canfield;*and without his .testimony the facts are strong, nay, conclusive to shew that the credit was given solely and exclusively to *Seudder. Canfield*had wished to procure from *Wade,*paper on which to print the *Essex Patriot. Wade*refused to trust him, or let him have the paper. *Seudder*then applied to Wade— what passed at this interview, we can only in*fer from subsequent facts. *Seudder*took away with him one ream of paper fit for the *Journal;*and upon arriving in *Elizabeth-Town,*wrote the letter which has been so much discussed. In it, he declares,that the ream which he took, was of the right kind, and directs twelve reams more to be sent in a given time, and charged to him. Now all this seems plainly to lead only to one conclusion. Why did not *Canfield*take the paper ? Because the plaintiff would not trust him. Why did defendant take it and order more, and the whole to be charged to him ? Because his credit had been interposed. But the letter proceeds to say that less than twelve reams would do, if he had not so much of the kind by him, and adds, “we shall take our whole supply of you, and make payment in four months.” It is to be remembered that it is for this “whole supply,” which he thus declares that they will take, that. this suit is brought. But why did he give all these directions—why assume the authority to decide as to the *293amount of paper then necessary, and what should be taken of him in future? Because his responsibility was-pledged. If he were merely collateral security for *Can-field,*and *Canfield*bought the paper and was the person most interested, why did not he give the directions?Why do we see and hear nothing of the principal, while the security does every thing ? But there are also other parts from which the inference is not weak. The plaintiff’s books are kept in the ordinary mercantile mode, charging the paper not to *Canfield,*but to *Scudder,*and *Scudder*is applied to for payment. There are many cases in the books where the goods are charged to the person who receives them, and where there has been an effort to fix the payment on another, because he had promised “to see them paid for,” or something of that kind; but this is of a totally different character. Upon the plaintiff’s books the credit is given to the defendant. The case of *Hale,*which is incorporated in this action and is made a proper subject of consideration, also affords an additional inference. He too, had tried to get paper of *Wade,*and had been refused. *Scudder*also, here interposed his credit, and the paper was sent, and is charged in precisely the same mode, and is paid for by *Hah,*not to *Wade,*but to *Scudder.*The only distinction that I see in the cases is, that *Canfield*had failed and could not pay ; but *Hale*had paid.

*The whole of these facts combined, shew so strong a case of credit given to defendant, that I am not willing to find fault with a charge, which expresses a belief that he is bound ; or with a verdict which fastens the responsibility upon him. To me, it seems, that the undertaking was an original, independent promise, which created, induced and secured that credit, upon which, and upon which alone, the plaintiff relied and parted with his property. I do not think, that there is even plausibility in the objection which was so zealously urged, that *Can-field*was originally liable and might have been sued, and therefore the undertaking of the defendant was collateral. The position is true in law, but unsupported in fact. Where is the evidence that *Canfield*-was liable ? The mere receipt of the paper, except it be for himself, on his own *294bargain and credit, does not make him so; and surely plaintiff had no possible means of establishing any such bargain or credit: his own refusal; the letter of *Scudder;*his own books, conclusively proved that he never trusted *Canfield.*

Note.—At the *May*term, 1819, of the Court of Appeals, this judgment was reversed, but the reporter is not able to present the view taken of the case in that court.

In the view then which I take of this case, it is not within the statute of frauds; no note in writing was at all necessary. The plaintiff might have sustained his claim, upon the facts proved, with parol evidence of the same matters which are contained in the letter.

It is not necessary for me to inquire whether, *under the statute,*that letter would have been sufficient to charge *Scudder;*I will only say, that *combined with the facts in evidence,*I think it an abundant letter of credit; a sufficient note, both of the promise and consideration, to bind the writer to the full extent claimed by the plaintiff.

I am clearly opposed to the reversal of this judgment.

By the whole Court. Let the judgment of the Court of Common Pleas be *affirmed.*