#### *Thomas Bronson vs. Chancey Stroud.*

The parol promise of a party to pay the debt of a third person, or to sign a note with Jiim as security, is a collateral undertaking, and void, under the statute of frauds. There is no distinction between a promise made before and after the delivery of the goods. The promise, in order to charge the party, must be in writing.

*Before*Earle, J., Greenville, *Spring*Term, 1842.

This was a special action on the case, for *refusing to give*a note of hand for certain hogs, which the plaintiff alleged were sold to the defendant, or delivered to David Henning on the credit of the defendant, and on his undertaking that he would sign a note with Henning for the amount, when the same should be presented, and which he afterwards refused to do when requested.

The subjoined report of his Honor, Judge Earle, will fully explain the facts and the points made in the court below, and the questions decided by the court.

“ One Black, a witness for the plaintiff, deposed that he had hogs at Greenville for sale; that Henning applied to purchase; that the plaintiff replied that he must be made safe; that Henning talked privately with Stroud, who then returned and said to the plaintiff he would be Henning’s security; told him to let Henning have the hogs, stipulating the number that Henning was to get, but added that he lived some thirteen or fourteen miles off, and wished to return home that evening, and could not wait until the hogs were weighed, but directed the plaintiff, when they were weighed, to make the calculation and draw the note for the amount, and let Henning sign it, and then bring or send it to him, and he would sign it with him. He said he would go in with Henning in the note for the hogs. The hogs were accordingly delivered to Henning on this undertaking of Stroud. A note was drawn and signed by Hen-ning, and presented* afterward to Stroud for his signature, which he refused.

“ Henning was likewise sworn, and deposed that when he was purchasing the hogs, the plaintiff said that he was requiring security of all who dealt with him; that he told the plaintiff to take the note to Stroud, expecting he would sign it; he did not know that he would do so ; he *373had not spoken to him for that purpose. He had dealt a great deal with the plaintiff before, and did buy of him afterwards on credit.

“A motion was made for a non-suit, on the ground that the undertaking of the defendant was collateral, and within the statute of frauds. The question was not free from difficulty. I thought it depended on this, to whom the credit was given in the first instance. On the evidence of Black, I thought it clear that the plaintiff had refused to sell to Henning, except upon Stroud’s promise to sign the note with him; the fact of taking a note,from Henning proved nothing to the contrary, as it was a joint and several note, intended to be signed by Stroud, according to the -agreement. And as Stroud directed the plaintiff to let Henning have the hogs, prescribed the number, and only did *not*sign the note, because he could not wait, I thought it.not unreasonable to conclude that the credit was given to him alone, and that the undertaking was not within the statute. I thought that there was a difference between a promise to sign a note with Henning, which would have bound him directly for the whole amount absolutely, and a promise to pay the amount if he did not. I overruled the motion for non-suit.

*“*Henning was re-examined for the defendant. He told Stroud that Bronson required security from him. He had no doubt that Stroud would sign the note. Bronson retained the note he gave him, demanded and received payments on it, and finally brought suit for the balance, (in which he obtained, judgment,) before this action.was brought against Stroud. The other evidence offered seemed wholly immaterial. The same point was made before the jury as on the motion for a non-suit. I instructed the jury, if they were satisfied either that Stroud purchased the hogs, or that they were delivered to Henning solely on Stroud’s credit, and on his promise to sign a note with Henning, that I thought it was an original contract, not within the statute of frauds, and the plaintiff should re-recover ; if the hogs were sold and delivered to .Henning, and the credit was given to him, on his promise to give security, even with the defendant’s promise to sign with him, then the defendant should have verdict. The third excep*374tion to the charge arises out of a remark in commenting on the cases cited, of goods charged to one, and an attempt to make another liable. Here there could be no such evidence, from the nature of the article sold. The taking of the note from Henning was, in the first instance, according to the agreement, and proved nothing as to whom the credit was given. I did not say that a promise before or after delivery made any difference as to the liability of the defendant, as supposed in the fourth ground. The promise being made before the plaintiff would deliver the hogs to Henning, was a circumstance which tended to show that the credit was given to- Stroud. The facts that the plaintiff returned the note, demanded payment from Henning, waited until it fell due, then sued him, before he resorted to Stroud, were calculated to lead to the opposite conclusion. The effect of these circumstances was submitted to the jury, with tbe general instruction above recited.

Verdict for the plaintiff for the balance of the price of the hogs.”

The defendant appealed, and renewed his motion for a non-suit, on the following grounds :

1st. Because the case made out by plaintiff was a “ special promise to answer for the debt, default or miscarriage of another person,” without any "agreement,” “ memorandum or. note thereof,” being in writing and -signed by the defendant.

2d. Because the proof was, on the part of the plaintiff, that the defendant had *verbally*promised to go Henning's *security*for the purchase of forty hogs, and afterwards refused.

3d. Because the proof was, that Henning *contracted*for the hogs, *purchased*them of plaintiff, they were *delivered,*to him, he made use of the meat, *gave his note*for the purchase money, when it became- due *pa,id*$160 on it; was sued for the balance, and a judgment obtained, Fall Term, 1840.

4th. Because the proof did not support the only count in the declaration, which alleged that defendant purchased the hogs for himself. For if there had been any such proof, the defendant and Henning should have been *sued jointly.**375and a *separate*action against the defendant would not lie on *a. joint*contract by him and Henning.

And for a new trial,

1st. Because his Honor erred in charging the jury that it was an original contract on the part of the defendant, and therefore not within the statute of frauds and perjuries.

2d. Because his Honor erred in charging the jury that Stroud, the defendant, purchased the hogs himself, and that no credit was given to Henning by the plaintiff.

3d. Because his Honor charged the jury that the law applicable to the case would have been different if the plaintiff had only *charged*Henning with the price of the hogs, and not taken his note for it.

4th. Because his Honor charged the jury that the promise made by Stroud, the defendant, being *before*the hogs were delivered to Henning, made a difference, and took the case out of the statute.

5th. Because his Honor charged the jury that if they believed the testimony of Black, a witness for the plaintiff, he was entitled to recover.

6th. Because the verdict was, otherwise, against law and evidence.

Perry, for the motion,

said, was the credit given to Henning or not ! If Stroud was an original purchaser, the declaration could not be sustained. He cited, in support of his views of the case, 2 L. Ray. Rep. 1085 ; 2 T. R. 81; 1 Salk. 27; 1 McC. 104; 2 L. Ray. 224 ; 6 Rand. 509; 1 H. Black. Rep. 120; Roberts on Frauds, 218 ; 1 B. *&*P. 158 ; 1 McC. 395; 8 Johns. 29 ; 1 McM. 280.

Young, contra,

contended that the verdict should be sustained. Whether it was an original or a collateral undertaking, in either event the verdict must stand. To whom was the credit given ? To whom were the hogs delivered! To Henning, as the agent of defendant. The undertaking of the defendant was original. Cited 4 Taunt. 611. If one apply to another to deliver goods to a third person, and promises to accept a bill, or promises to sign anote for the goods, this takes the case opt of the statute of frauds. *376The verdict in this case could be sustained on the count in the declaration for deceit.

Towns, in reply, contended that this was a collateral and void undertaking, and came clearly within the provisions of the statute of frauds. He cited Comyn on Contracts, 51. There is a difference between a conditional and absolute undertaking. 1 Comyn on Contracts, 53, 54; 1 Saund. Rep. 211. *note*I; Chitty on Contracts, 202 — 4,576.

*Curia, per*

Evans, J.

From the evidence in this case, I think it is pretty clear, that but for Stroud’s promise, Hen-ning would not have got the hogs from the plaintiff, and therefore it may be said, in some sense, that the credit was given to Stroud; but that is always the case where the creditor refuses to trust a debtor unless he is “ made safe,” by the promise of a third person. If a merchant says to A, I will not trust you with my goods, and thereupon B says, let him have the goods, and I will see you paid, in such case, although the goods would not have been delivered but for the promise, it has never been supposed that B was liable, without writing, if the creditor looked in any way to A for the payment of the debt; but if no credit whatever was given to A, then B would be regarded as the one to whom credit alone is given, and would be bound by the promise. The promise of Stroud was, that “ he would be Henning’s security,” that he would sign a note “ with him” for the amount. The case, then, presents this question, whether a parol promise to be another’s security, or to sign a note with him, upon the faith of which property is sold and delivered, is not void under the statute of frauds. The 4th section of the statute of frauds provides “that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or *miscarriage*of another person, unless the agreement upon which such action 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.” It is said by Chitty; (Chitty on Con. 402,) if the person for whose use goods are furnished be liable at all, the defendant’s engagement, though it were the chief inducement to the plaintiff to supply the *377goods, is collateral, and must be reduced to writing. It is also said in the same work, that the statute applies *if the third party be at all trusted.*The principle thus stated is well sustained by the authorities. Thus, in *Buckmyer vs.*Darnall, 2 Ld. R. 1085, the plaintiff declared the defendant, in consideration that the plaintiff, at his request, would lend to one English a horse, that English would re-deliver the horse. At first some of the Judges doubted if this was not an original or direct undertaking,; but after consultation, it was decided that the defendant was not liable on this parol agreement, because English might be sued in de-tinue for the horse. So, also, in *Matson vs. Wharham, 2*T. R. 80, Justice Buffer says, “ the general rule now taken is, if the person for whose use the goods are furnished is liable at all, any promise by a third person to pay that debt must be in writing, otherwise it is void under the statute of frauds.” In this case a distinction was attempted to be made between promises before delivery and after, but the court denied there was any such distinction. These are quoted as the leading cases, in most of the cases since decided, both in England and the American States, and are so referred to in the case of *Leland vs.*Creyon, 1 McC. 100. In that case, Judge Gantt, delivering the opinion of the court, says, if Leonard, to whom and for whose use the goods were delivered, was originally liable to be sued, then the promise of Creyón was collateral and void. These authorities, with numerous others which might be cited, go to establish the principle that if there be any liability on the party to whom the goods are delivered, upon which an action may be brought, the promise of a third person to pay the same debt, should be in writing. The principle is further illustrated by those cases which establish a promise to pay the debt of another’, subsisting at the time of the promise; such as the case of *Corbet vs.*Cochran, Riley’s Law Cases, 44. All these cases go on the ground that the original debtor was wholly discharged. Unless that had been the case, the promise could not have been binding; it would have been collateral, and within the statute of frauds. What, then, was the promise of the defendant'? At the utmost, it is no more than a promise to be Henning’s security, as stated by the witness in one part of his examination, *378or as stated in another part, to sign a note with Henning for the price of the hogs. So far as the obligee is concerned, the law makes no distinction between principal and security. He has a right to look to all, and on a joint and several contract, may hold each liable, severally, to him.— But if the rule be as I suppose, that both cannot be liable on a parol agreement at the same time for the same debt, unless they are joint contractors, if Henning was liable at all, Stroud was not. This liability was not to be exclusive, but was according to the agreement to'be super-added to Henning’s, by signing his name to a note to be signed also by Henning. Taking the agreement therefore as proved, and giving it the only rational interpretation which it will admit of, to wit: that if Bronson would deliver the hogs to Henning, the defendant would sign with Henning a joint and several note for the payment of the money, I can come to no other conclusion but that the promise of the defendant was not a primary, or original and direct undertaking, but was what is usually in the cases decided, called a collateral undertaking, which is not perhaps' in all cases the most appropriate term to convey the idea. But if, as we are at liberty to do, (Chitty, Con., 404, and cases referred to,) we look to the conduct and acts of Bronson to aid us in the interpretation of the contract, there can be but little doubt of what was his interpretation of.it— He retained the note, received part payment from Henning, treated it as his note, sued and recovered judgment on it, and never resorted to Stroud until after Henning’s insolvency. As the plaintiff held Henning liable to him for the debt, then Stroud’s promise was to pay Henning’s debt, and should therefore have been -in writing. If the credit had been given to Stroud, the promise would have been that he would pay the money, or give his own note for it. If such had been the fact, then he would have been liable.— It is supposed this is like the promise to accept a bill of exchange, which, it has been *held,*is binding, although it be by parol, (4th Taunton, 64,) but that case is in no respect like this. The acceptor is presumed to accept a bill on the faith of the funds in his hands, of which the bill is an appropriation. His undertaking and liability is not for the debt or default of another. He, and he alone, is primarily *379liable. No other is liable except on his default. His is not a promise to pay the debt of the drawer, but to apply the drawer’s funds in his hands to the payment of the drawer’s debt, or according to his order. I think, therefore, the verdict is wrong. There is no evidence to sustain it. on the promise, and there is nothing to support the count for deceit. The only remaining question is, shall there be a new trial, or a non-suit. There is no dispute about the facts. The case has been considered on the evidence given by the plaintiff. The facts being ascertained, the legal effect of them is a question of law as declared in the case of *Leland vs.*Creyon, 1 McC., 105, and it being the opinion of this court, that the plaintiff cannot recover on his own evidence, a non-suit should have been ordered on the circuit.

The motion for a non-suit is granted.

Richardson, O’Neall and Butler, JJ., concurred.

Earle, J.,

dissenting. Nothing can be better settled, or more generally understood, than the distinction between original and collateral undertakings, with reference to the Statute of frauds. Where the debt of the third person alleged to be assumed, has previously existed, it is not difficult to determine the liability of the person making the guarantee, for it must be in writing, unless the former debtor be discharged. But where the debt is incurred at the same time that the promise is made, as in this instance, the liability of the promissor becomes a mixed question of law and fact. Had Bronson sold the hogs to Henning, and taken his note before the defendant’s promise to sign with him, it would clearly have been a case within the Statute. But the whole was a simultaneous transaction. The defendant said, “let Henning have the hogs, and I will go in a note with him for the amount.” It is not an undertaking to pay if Henning should not; it is not a promise that they will jointly pay. It is a promise that he will do an act, which, when done, would have bound him at once for the whole debt. I cannot agree, therefore, that by force of its express terms, the undertaking was to become Henning’s security merely ; or that by any necessary implication the *380credit was given to Henning, or given to both of them jointly. For when the plaintiff refused to let Henning have the hogs until defendant undertook, he furnished an equal ground to believe that the credit was given wholly to the defendant. There was no joint undertaking at all, and when the plaintiff took Henning’s note, he did not thereby manifest that he gave credit to Henning alone, or jointly with the other, because he cannot otherwise claim *from*the defendant the performance of his engagement. When he retained the note, and accepted payment of part from Hen-ning, he was doing what he well might do, using Henning’s direct engagement in writing to pay him the money, given, it is true, after the defendant’s undertaking, but certainly not superseding it. At the utmost, it was a case in which the question of liability depended clearly upon this — to whom was the credit given in the first instance *1*and this was properly for the decision *of*the jury, to whom it was submitted. The rule, as extracted from the English cases, is thus expressed in 2 Leigh’s N. P., 1025. — “ It is a question for the jury in such cases, whether credit was given to the defendant before the debt was incurred, or to another as the principal, taking all the circumstances of the case into consideration,” Such was the course pursued in *Keate vs.*Temple, 1 B. *&*P., 157, where a lieutenant in the navy was sued for clothes furnished the crew of his vessel, by a slop seller, on this promise, “ I will see you paid at the pay table; are you satisfied 1” There was a verdict for the plaintiff, and although the court granted a new trial (a non-suit was *not*thought of,) it was upon the circumstances of the case which it was thought ought to be submitted to another jury. So in *Darnell vs. Tratt,*2 Carr. *&*Pay., 82; an action by a school-master against an uncle for the schooling of his nephew, carried to the plaintiff’s school by the boy’s mother, without any instructions as to who was liable. The defendant, when the bill was sent to him, said, “ quite right, I am answerable.” The Chief Justice left the question to the jury, as to whom the credit was given. In *Storr et al. vs.*Scott, 6 C. & P., 241, in the same kind of case, where the defendant, as steward of certain races, selected at the shop of the plaintiff a gold cup, saying, “you must send the cup as usual, I suppose, to the *381clerk of the course,” which had been frequently done by the plaintiff before, Lord Lyndhurst said to the jury, “the question is, upon whose credit the cup was furnished and left it to them to say, whether the credit was to be given to the defendant, or to the clerk of the course. In *Leland vs.*Creyon, 1 McC., 100, where the court ordered a nonsuit, the goods were not only charged to a third person on the plaintiff’s books, but there was no promise by the defendant at all, and the attempt was made to charge him, by a memorandum on the books, made by the plaintiff himself several days after the delivery of the goods. It cannot be doubled that the defendant would have been liable upon his undertaking to accept a bill, 15 E. C. L. R. 45; or to give his own note; or I should say, also, upon his promise to endorse Henning’s note, to be afterwards procured, if the article was delivered upon the credit of this promise. I cannot perceive that it makes any difference that it was a promise to sign a note with the other, if the credit was given solely to him on the faith of that promise. I admit fully, that the Statute was intended to include every case of mere surety, whether the agreement to be answerable was collateral to a previous liability of the principal, or concurrent, and made at the same time with some promise or agreement creating a liability of such principal debtor. But I think there is quite enough here to sustain the verdict establishing that there was no credit actually extended to Henning, and that the hogs were delivered on the credit of the defendant.