Fuller v. Gray , 116 Ala. 238 ( 1896 )

COLEMAN, J.

This action began in a justice’s court, the consideration of the claim being for goods sold'and delivered. All the assignments of error are based on the rulings of the court upon instructions to the jury, and the overruling of defendant’s motion for a new trial. The defendant Fuller (appellant here) pleaded the genera] issue, and specially, that the debt was the debt of one B. W. Whatley, and that if he (defendant) ever agreed or promised to pay the same, it was a promise to answer for the debt, default or miscarriage of another, and was not in writing, with the consideration expressed in writing, and was, therefore, void under the statute of frauds. — Subdiv. 3 of § 1732 of Code of 1886. There was no conflict as to the fact that the goods were sold and delivered to Whatley. Plaintiff’s evidence tended to show that this was done upon an agreement made with Fuller and by his directions, he being responsible for them. Fuller denied that he ever gave any such instructions or made any such agreement, and there was some other evidence tending to sustain him. The conflict in the evidence upon this issue did not warrant the giving of the first instruction to the jury, requested by the plaintiff. This charge instructed the jury, that if “all the credit was given to Fuller, and that Whatley got the goods from Gray, the jury must find a verdict for the plaintiff, ” &c. This charge ignores the essential fact, that plaintiff must have been authorized by the defendant to charge the goods to him, a fact directly controverted. The giving of credit alone, unless authorized by the defendant, would not make the defendant liable.

The fact that the account was made out against Whatley and Fuller, that the justice sued both, and judgment was rendered against both defendants, in view of other evidence in the case, was not conclusive upon plaintiff that he looked to Whatley for payment, and that some credit was given to him. On these questions the plaintiff’s evidence tended to show that he was instructed by Fuller to keep the accounts in this way, so that he (Fuller) might distinguish his individual purchases from that of his tenant Whatley. The evidence of the plaintiff tended further to show that the justice of the peace was-informed that the debt was that of Fuller alone, and he was instructed to sue him only, and contrary to instructions the summons and complaint were made out by the justice against both. The record is not clear, but our conclusion is that the plaintiff had this judgment set aside and prosecuted to judgment only the suit against Fuller. Many of the authorities which bear upon the questions involved are collected in the note to section 1732 of the Code of 1886.— Webb v. Hawkins Lumber Co., 101 Ala. 630; L.& N. R. R. Co. v. Hurt, 101 Ala. 34.

We find no error in the record except the giving of instruction number one, above noticed, for which the judgment must be reversed.

Reversed and remanded.