Rhodes v. Leeds , 3 Stew. & P. 212 ( 1833 )

Taylor, J.

The only proceeding, in the court below, assigned as error, is the charge contained in the bill of exceptions. It appears, that the defendant below, (the plaintiff hero,) requested cne Williams, to write-to the plaintiff, Who lived in New Orleans, to furnish a Capt. Dobson, with such iron castings as he needed, and he would pay for them. Williams replied, that “ he would not write to the -plaintiff ; but,1 that he would write to one Capt. Vincent, who would represent him,” (Williams.) - That Williams did write to Vincent, representing Rhodes, as a responsible man; and, Vincent applied to Leeds, to furnish the castings; and “Leeds informed him, that, on his,- (Vincent’s) representations, which were verbal, and not written, or contained in the letter, he would furnish the castings; and, that he had furnished them, on such representations.”

“The defendant, Rhodes, moved-the court, to charge the jury, that, the promise, or undertaking of the defendant, was within the statute of frauds, and they otight to find for him. The court refused to give the charge, as prayed — but, charged the jury, that it was not within the statute of frauds.”

The statute of frauds, so far as it is brought into consideration, by this case, is in the following words, viz: “That no action shall bo. brought, whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriage, of another person; unless the promise of agreement, upon which such action shall be brought, or some memorandum, or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person, by him, thereunto lawfully authoris-ed.”

The uniform,-and obviously correct decisions, under this statute, have been, that if credit is given’to A — a promise, by B, to pay the debt, must he in writing, to be obligatory-; but, if the credit, in 1 be first instance, is given to B, although the consideration passes to A, it is an original undertaking by B, and he is bound to perform it, although there is no writ-ino*.

In the case before us, was the credit given .to Rhodes," or to Dobson ? There can not be the shadow of doubt on this subject. The castings were purchased by Rhodes, to be delivered to Dobson, it is true; but, that was perfectly immaterial to the vendor. It is not the destination of the-article purchased, which determines the responsibility of the person sued; but, it is whether the debt be his own, or that of a third person. In this instance, it was obviously the debt of Rhodes, and not of Dobson.

It does not appear, that Dobson was known, or his responsibility thought of, by Leeds ; but, it does ful: ly appear, that he furnished the castings, because, from the representations of Williams, through Vincent, he was satisfied of the ability of Rhodes, to pay for them.

Let the judgment be affirmed.