514 nriNT:InCT Vs. LAWSON. fr. BENEDICT 'Vs. LAWSON. Where a plaintiff proves the contract as declared. and a verdict Is given for defendant, a motion for- new trial should be sustained. the Tms was an action of assumpsit, determined in the Pulaski circuit court, in July, 1843, before the Hon. JOHN J. CI, ENDENIN, one of the circuit judzes. George and Tfenry Benedict sued . .1. ,anon on a special
A B EN Emur vs. LAwsoN. 515 count and an indebitatus and quantum valebat count for lumber to the amount of $13t), detivered to John Saylors. The delivery ot the lumber was.alleged in the first count to have been at the joint req.icst ,.,f Saylors and Lawson; and in-the other counts at the request of Lawson alone. The case was submitted to the court, sitting as a jury, on the plea of non-assumpsit. The court found for the defendant, and judgment accordingly. Motion for new trial overruled and exceptions, in which the evidence is set out. The evidence was that Saylors wished to purchase some hialher to finish his house, and- told one of the Benedicts that Lawson owed him about $130, (that being about what the lumber would cost,) and. that if he would let him have the lumber, Lawson would pay him for it. Benedict then went to -Lawson and told hint what Saylors had said, and that the lumber would amount to about one hundred and forty dollars. Lawson told him to deliver the lumber to Saylors and he would pay for it, and that, if it amounted to ' only a little more than MO, he would pay something -for Saylors oat . of his own pocket, as Saylors would not live long and his wife would then have a house to live in. Benedict then agreed to deliver the lumber as soon as he could. it was understood that Lawson owed Saylors $130. -Witness }lad understood from general representation that the plaintiffs were partners in carrying on a saw mill. A month or two afterward , , one of trme plaintiffs brought down 9,607 feet of lumber and dehveed it .to Saylors, worth $18 a thousand. Tf e mpstead & joli cson , for plaintiffs. The underl-aking of tlt defendant was original and in no sense of the term "a promise to answer, for the debt of another," so as to require a memorandum in writing to support it. So far from that being true, the considerat . on of Vie promise was a debt actual hv due from the defendant to Saylors; und which was discharged by the delivery of the lumber in question to Saylors by the defendant's direction. This is obviously a case not within the statute of frauds. 'Chase vs. Day, 17 J. R. 114. Win-stead vs. Greenly, 1.8 1. R. 12. Bailey vs. Freeman, 11 J. R. '4;21. Nelson vs. Dvbois, 13 J. R. 175. Allaire vs. 0 macula, 2 J. C. 52. Leonard vs. Vredenbvrg, S J. B. 29. .1 Boll. Abr. 27. 1 East. 135. •
516 BENEDICT vs. LAWSON. [5 Cowp. 184. Slingerland vs. Moore, 7 J. R. 463, and note, and cases there cited. But even if the defendant was not indebted to Saylors, -it is manifest that the credit was given entirely to the defendant; that the contract in point of fact was made with him for the delivery of the lumber: that he absolutely promised to pay. And I take the rule to be clearly established, that if a person part with property on the faili and credit of the defendant's undertaking, it is an original contract and need not be in writing: nor is it embraced within the policy, letter or spirit of the statute of frauds. Holt/ditch vs. Milne, 3 Esp. Rep. SO. Croft vs. Snialiwood, 1 Esp. Rep. 121. Williams vs.. Lee-per, 3 Burr. 1886. Keate vs. Temple, 1 Bos. & Pul. 158. Pike & Baldwin. contra. Does the evidence in this case show such a contract as can be enforced against Lawson under the statute of frauds? The provisions of the chapter on contracts, promises and agreements, so far as they touch this case, are preciseby the same in substance, as the Stat. 29 Car. 2, chap. 3, sec. 4. This case is not affected by the 2d section of that chapter of the Revised Statutes, because Lawson's promise was not collateral, but a direct one. Croft vs. SmallwoOd, 1 Esp. Rep. 121. 1 Saund. 211. a. n. Edge vs. Frost, 4 T. 1?. 243. Langdale vs. Parry, 2 id. 337. Barber vs. Fox, 1 Stark. R. 270. Wood vs. Penson, 2 C. & J.. 94. Dixon vs. Hatfield, 2 Bing. 439. 10 Moore 42. Darnell vs. Pratt, 2 C. & P. 82. It was once held that the statute did not apply to executor's contracts. But the distinction so taken has long been exploded, and tha statute over and over again held to apply to cases precisely like the present. Rondeau vs. Wyatt, 2 H. Bla. 63. Cooper vs. Elston 7 T. R. 14. Garbutt vs..Watson, 5 B. di Ald. 613. S. C. 1 T. R. 219. Witks vs. Atkinson, 6 Taunt. 11. West Middlesex Water TV. Comp. vs. Suwerkropp, Mood. & Malk. 408. Bennett vs. Hull, 10 J. R. 364. Crookshank vs. Burrell, 18 J. R. 58. Sewall vs. Fitch, 8 Cowen. 215. Eichleberger vs. McCaniey, 5 Harr. & J. 213. Jackson. vs. Coral. 5 Wend.. 139. Long on Sales, 64. Smith vs. Surman, 9 B. & C. 561. Watts vs. Friend, 10 B. & C. 446.
ARK.] 517 Nor can this fall within that class of cases where the fact that work had to be done about the articles to be furnished has been held to take them out of the statute. Towers vs. Sir John Osborne, Str. 506. Clay-ton vs. Andrews,. (since over . ruled by Garbutt vs. Watson,) 4 Burr. 2101. Groves vs. Buck, 3 M. & S. 178. Smith, vs. Surman, 9 B. & C. 575: because there is no showing in this case that the lumber was not in existence, or was still to be sawed, when this contract was made; and therefore• this cannot be considered as v contract for work and labor, as well as for lumber to be furLished. 23. Wend. 270. 1 D. & B. 219. 4 Man. & By. 455. 21 Pick. 205. By the Court, LACY, J. It is clear that the court, that tried the cause, erred in not granting the plaintiffs a new trial. The evidence shows that the plaintiffs agreed to deliver a certain quantity of lumber to John Saylors at the special instance of and request of the defendant, and th4 he stipulated on his part to pay for it, and that the plank was delivered agreeably to the terms of the contract. And the court (in this action which is assumpsit) gave judgment for the defendant. The contract is proved as declared on; and the record shows that the whole facts were submitted to the court, as well as the law; and that the judgment should have been for the plaintiffs. judgment reversed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.