Sanford v. Howard , 29 Ala. 684 ( 1857 )

WALKER, J.

Whether the defendant’s promise was within the statute of frauds, is one of the questions of this case. The promise, with its accompanying declarations, was as follows: “ Let the children of Jacob Mayberry, deceased, have any goods they wish, and charge them to the children separately ; and I will pay for them at the end of the year, or as soon as the cotton crop is sold.” This promise was a direct, and not a collateral undertaking, unless the direction to charge the children gives it a different aspect. — Rhodes v. Leeds, 3 St. & P. 212 ; Bates v. Starr, 6 Ala. 697 ; Oliver v. Hire & LeBarron, 14 Ala. 590 ; Scott v. Myatt & Moore, 24 Ala. 489. If the persons who procured the goods ¿re liable, then, under a rule long established, the promise would be collateral.- — - Puckett v. Bates, 4 Ala. 390 ; Leland v. Creyon, 1 McCord, 100 ; Cutler v. Hinton, 6 Randolph, 509 ; Ware v. Stephenson, 10 Leigh, 155. If, therefore, under the contract the children were liable at all, the promise would be deemed collateral. What would be the effect of the fact, unexplained, that the goods were charged to the respective persons who procured them, is not a question in this case/ No authority can be found contradictory of the position, that it is a question of intention, whether charging the goods to the person receiving -them proves that the credit was given to him.— Cutler v. Hinton, supra ; Scott v. Myatt & Moore, supra. The intention of the defendant to bind himself by his promise, notwithstanding the goods might be formally charged to the respective persons procuring them, is shown by the contract itself. The promise was, that if the plaintiff would let the children of the deceased have any goods they wanted, and charge them respectively, he, the defendant, would pay for them at the end of the year, or when the cotton was sold. The act of charging the goods to the children thus appears to be consistent with the terms of the promise, and can contribute nothing to prove that promise' to be collateral ; because it asserts, unconditionally, that if the goods were so charged, the defendant would pay for them at the end of the year, or when the cotton should be sold.

The promise is one which, by its terms, imposes a personal liability upon the defendant; and notwithstanding he may have been an executor, authorized by the will to supply goods to the children of the deceased, and intended, at the time he made the promise, to pay out of the estate of the deceased, and the plaintiff himself expected payment to be made from that source, the defendant is personally liable on his promise. The purchases of trustees, including executors, administrators and guardians, when made in obedience to the duties of the trust, impose upon them a personal liability. The seller must look to them for payment, and they must look to the trust estate for reimbursement. — Simms v. Norris & Co., 5 Ala. 42 ; Jones v. Dawson, 19 Ala. 672 ; Kirkman, Abernathy & Hanna v. Benham, 28 Ala. 501 ; Johnson v. Gains, 8 Ala. 791; Peters v. Heydenfeldt, 3 Ala. 305.

The assent of the minds of both parties is necessary to constitute a contract; and if one make a proposition, he may recall it at any time before its acceptance; but it is not necessary that the mutual consent of the two minds should occur at the same time. — Falls & Caldwell v. Gaither, 9 Porter, 605. The defendant did not require, and the promise itself did not from its nature exact, an immediate response. The promise itself seems to assume its acceptance, and to contemplate the supply of the goods, and the debiting of the persons indicated, as the next step on the plaintiff’s part. It was, therefore, certainly not necessary that the assent of the plaintiff’s mind should have been given at the time of the promise. From the supply and charging of the goods to the persons indicated in the promise, in pursuance to it, and in the absence of its revocation, if made within a reasonable time, the law would imply the assent to the defendant’s promise. — 1 Parsons on Contracts, book 2, ch. 2, pp. 399 to 403.

The first four charges given by the court are inconsistent with the principles above laid down, and we decide that the court erred in giving them.

The promise presented in the fifth charge, differsfrom that proved, in its omission of the direction to “ let the children have any goods they wished ” ; and we are not certain that there was any testimony upon which the ^charge could be predicated. But, waiving those questions, we decide, that the proposition asserted by the charge is not the law. The proposition, condensed, is, that although the defendant promised to pay for the goods sold, without imposing any restriction as to the quality or amount; yet, if the defendant had the intention that the plaintiff should sell only goods of a certain character, and that was known to the plaintiff, there would bo no liability for any other kind of goods. The contract set forth in the charge, is plain,' intelligible, and free from ambiguity ; the legal obligations resulting from it are equally plain ; and the naked question is, can this contaact, free from ambiguity, not shown to be tainted by fraud, or to-have been made.through mistake, be modified materially as to its terms', so as to conform to an intention, variant- from it, of one of the parties, known to the other. We decide this question in the negative. In sustaining the charge, we should not construe or interpret the contract of the parties according to their intention in making it, but change it into a conformity with an intention outside of the contract. “ A contract, which parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make.” — 2 Parsons on Contracts, 9 ; Benjamin v. McConnell, 4 Gilman, 586.

We proceed to lay down the principles which we deem applicable to the questions presented in the other charges given by the court. A separate examination of each charge is not .necessary. The children, for whom the defendant undertook, might, consistently with the terms of the contract in this case, procure the goods through their servants ; but the authority of the servants must be shown, as in other cases. If the defendant is liable upon the contract at all, it is not for purchases by the children as his agents, but for themselves on his account; and therefore the doctrine that delegated authority cannot be delegated has no application.

The questions, whether the executor of the last will and testament of the deceased would be allowed to pay the accounts out of the assets of the estate, or whether be had funds of the estate in his hands, or what his authority was under the will, are altogether foreign to the case. If there is any liability at all, it is personal, and cannot be affected by any of those matters. No charges should, therefore, have been predicated upon the supposition, that such matters affected the liability in this case; and the will itself was irrelevant and inadmissible as evidence.

Priscilla Mayberry, upon the proof before us, was a competent witness for the plaintiff. If the plaintiff in this suit recover from the defendant, for the goods sold to her, she is liable over to the defendant ; and would, therefore, be interested in favor of the defendant, as to the question of the amount and value of the goods supplied to her. Upon the question, whether the promise is direct or collateral, her interest is balanced. If the liability is original, she would be responsible to the defendant for the recovery from him. If the liability is collateral, she is primarily responsible to the same extent to the plaintiff. The authorities cited below are conclusive on this last point. In the case cited from Leigh’s Reports, it is intimated, that one standing in the position of the witness is responsible to the defendant for the costs of the suit, and would therefore probably be interested for him. Ware v. Stephenson, 10 Leigh, 155; Cochran v. Dawson, 1 Miles, 276 ; Goodman v. Love, 1 Car. &P. 75, (11 E. C. L. 321). What is said above, as to the interest of Priscilla Mayberry, is upon the supposition, that the goods obtained by her were of such character that she might be liable notwithstanding her infancy. If the goods were not such that she, being an infant, could be liable for them, it is clear that she could not have any interest in the case.

The bill of exceptions does not disclose what the chancery record offered in evidence contained ; and we are unable, on that account, to decide the question in reference to its admissibility.

The fact of plaintiff’s commencing suits against the children, for the goods charged to them respectively, was admissible evidence, as affecting the question, whether the defendant really made the promise alleged, and whether the goods were sold in pursuance to that promise. — Clealand v. Walker, 11 Ala. 1058.

The plaintiff offered, in explanation of his commencing those suits, to prove the advice of his attorney that it would not prejudice bis action against the defendant; and also, that information was given .the attorney, at the same time, that the children were willing that he should sue and recover judgment 'against them, or adopt any other means for the collection of the debts. These declarations were made at the time when the suits were commenced, and must be regarded as explanatory of the act of commencing them, and were therefore a part of the res gestee, and admissible on that ground, if no other.

Having decided that the liability of the defendant does not depend on the question of necessaries, it follows that, in our judgment, the testimony as to carrying goods by the door of the plaintiff’s store, was irrelevant.

The judgment of the court below is reversed, and the cause remanded. ■