Faires v. Lodanc , 10 Ala. 50 ( 1846 )

GOLDTHWAITE, J.

We do not understand the plaintiff as insisting there is error in either of the charges actually given, but that the court below should also have instructed the jury as he requested. It appears the witnesses examined, differed materially in their statement of the contract. According to one, it was made by the plaintiff with the defendant, but the others speak of Marino as the principal debtor, and the defendant as his surety only. In this condition of the evidence, it is clear the plaintiff was entitled to the instruction- of the court, upon his view of the contract, and if the credit was given to the defendant, and not to Marino, there can be doubt the plaintiff was entitled to recover, although Marino was solely benefitted by the lease. In such a case no credit is given to the third person, and he is responsible in no manner to the plaintiff. [Roberts on Frauds, 216; Rhodes v. Leeds. 3 S. & P. 212.] For this error the judgment is reversed and the cause remanded.