Hammond Coal Co. v. Lewis , 248 Mass. 499 ( 1924 )

Carroll, J.

The plaintiff delivered coal to the Gumbleton Laundry Company to the amount of $496.25. The plaintiff contends that the coal was bought on the credit of the defendant, delivered to the laundry company, and charged to it on the plaintiff’s books at the defendant’s request. The defendant relies on the statute of frauds. He contends that credit was given to the laundry company; and that whatever promise he made was collateral.

One Alden, the plaintiff’s treasurer and president, testified that at some time after he had given directions “ to ship no more coal ” to the laundry company, the defendant told him that he (the defendant) had a large amount of money invested in the Gumbleton Laundry Company; that it required coal and “ he himself, agreed to pay for the coal; ” that “ he was personally obligating himself to pay for the coal to keep the laundry going so he wouldn’t lose; ” that coal was delivered to the laundry company in reliance on the defendant’s promise. Alden also testified that the defendant asked to have “ the coal carried on the books delivered to the Gumbleton Laundry Company that he might be able to show if necessary later that he furnished the coal with his own money.” This evidence was contradicted, and the jury could have found that the defendant’s promise was collateral. There was, however, some evidence tending to prove that the defendant’s promise was original, and the case should have been submitted to the jury.

The contract was oral; the facts were in dispute; the language used and the meaning to be given it, were questions of fact for the jury. “ The construction of the words used is for the court . . . where an oral contract is distinct in its terms. But where a contract is to be gathered from talk between the parties, and especially from talk on more than one occasion, the question what the contract was, if controverted, must usually be tried by the jury as a question of fact.” Gassett v. Glazier, 165 Mass. 473, 480. Waldstein v. Dooskin, 220 Mass. 232. Orr v. Keith, 245 Mass. 35. This principle has been applied in cases similar to the one at bar. Heywood v. Stiles, 124 Mass. 275. Barrett v. McHugh, 128 Mass. 165. Downs v. Perkin, 207 Mass. 409.

It is well settled that where credit is given solely to the promisor he is bound upon his oral promise; and the statute of frauds is not a defence even though the merchandise was delivered to a third person at the request of the promisor. Dean v. Tallman, 105 Mass. 443. Alexander v. Dove, 231 Mass. 362. See Hill v. Grat, 247 Mass. 25. The fact that the coal was charged to the laundry company on the plaintiff’s books was not, in view of all the evidence, conclusive against the plaintiff’s right to recover upon the defendant’s promise. Swift v. Pierce, 13 Allen, 136. Dean v. Tallman, supra. Downs v. Perkin, supra.

There was evidence tending to show that the promise of the defendant was not collateral or conditional, but was an original promise made by him; a verdict, therefore, could not properly be directed for the defendant. It becomes unnecessary to consider whether the defendant, because of his interest in the laundry company, would be liable on the ground of the direct benefit to him, within the rule explained in Paul v. Wilbur, 189 Mass. 48. See as bearing on this point, Carleton v. Floyd, Rounds & Co. 192 Mass. 204.

Judgment to be entered for the plaintiff for the amount claimed in its declaration with interest from the date of the writ.

So ordered.