The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-04-26

against Dulaney, but were defeated on the
ground that he was mere surety. or guar.
antor, and his undertaking being verbal
was void. They then brought this action
against Hendricks, the party for whose
benefit the account was opened, and who
received and used the goods. Plaintiff rev
lied upon verbal promise of Hendricks to
pay for the goods, made before the institu-
ton of the suit against Duaney. Under
instructions favorable to plaintiffs, based
on said promise, the jury returned verdict
in their favor, upon which the Court rem
dered judgment, and new trial being re-
fused, the defendant prosecuted a writ Of
error.
CHALMERS, j.,
Held
1. 1t is evident that plaintiff in error is
in no manner affected by the result of the
litigation between defendants in error and
Dulaney, and his rights are to be determin-
ed without regard to that suit The only |
questions to be considered are whether he |
was originally bound for the goods, or has
subsequently became SO bya act or prom |
Use of his own. John w. Robinson, the |
senior member of the firm of Robinson q !
Stevens testified that "the goods were sold |
ito Hendricks upon the sole credit of Du-
"laney, and were charged to Dulaney on
'Ethe books of the the firm, that
'he never regarded Hendricks as liable on
said account and that Hendricks was not
so held liable for the payment of the same,
but that plaintiffs gave credit solely to Du-
''laney, and looked alone to him for paw
''ment' 1t seems needless to remark that
under these circumstances there was no
original Indebtedness from Hendricks to
plaintiff.
2. The testimony of plaintiffs makes
out clear case of liability upon the part
Of Dulaney, and however much they NAV !
have been wronged in their litigation with
MIN, they cannot urge the result of that
suit as reason why they should be allowed
o recover in this.
3. Does the verbal promise to pay for
he goods, made by Hendricks before the
of this suit, make him liable?
f it was wholly and solely the debt of
)ulaney, as plaintiffs testify that it was,
Hendricks could not bind himself by parol
0 pay it except through an arrangement .
y which, on a sufficient consideration, he
ecame substituted for Dulaney and the
after was discharged.
4. The fact that the goods were received ,
nd used by Hendricks does not affect the 4
rinciple. The parol promise of the bene- l.
ciary to pay the debt of him who by his
redit has procured the goods, is as invalid
) like promise by the surety when the
rimary obligation rests upon the benef- Ji
airy. "'
Whenever, therefore, the is primary
ability upon one, there can be no second
y liability fastened on the other save by
riting, and it is wholly immaterial whether X
e person sought to be charged is he who
1t the benefit of the contract, or he who Il
occurred it to be made for the benefit of
lother.
5. Neither can the validity of Hendricks
Irol promise to pay for the goods be sus- i,
ined upon the idea that having used them
ere rested upon him such moral obliga- if
On to pay for them as will support his -
ntract Whatever may have been the ear
II ideas on this subject, it is now well set
ID that purely moral obligation will not ri
dinarily support an executory contract
lere being no legal obligation upon de>
ldant in the case at bar to pay for the
DDS the fact that they had been bought
: and used by him does not afford such
'ral obligation as will support his parol 81
omise to pay them,
Judgment reversed and cause remanded.