Walker v. Richards , 41 N.H. 388 ( 1860 )

Bell, C. J.

Under the special counts the sale is alleged to be to Davis, &c., on credit, of goods he desired to buy; the credit is given to Davis, &c., and Davis, &c., is the debtor for the price. The contract of the defendant is entirely collateral. This contract, as stated, is a valid and legal contract. But, by the statute of frauds, it requires special proof to establish it. The contract must be in writing, and signed by the party, and parol evidence is inadmissible to establish such an agreement. The objection taken to the evidence, as applicable to these counts, was well founded. Carville v. Crane, 5 Hill 483; Wharam v. Matson, 2 T. R. 80; Anderson v. Hayman, 1 H. Bl. 120; Buckmyr v. Darnall, 2 Ld. Raym. 1085; Watkins v. Perkins, 1 Ld. Raym. 224; 1 Saund. 211, a, note; Jones v. Cooper, Cowp. 227; Skinner v. Conant, 2 Vt. 453; Rains v. Story, 3 C. & P. 130; Peckham v. Faria, 3 Doug. 13; Larson v. Wy-man, 14 Wend. 246; Walker v. Richards, 39 N. H. 259.

As there was in this writ a count for goods sold and delivered by the plaintiff to the defendant himself, there is no difficulty as to the statute of frauds, unless the contract proved is to pay the debt of another. In this case the jury, upon the evidence, would be entirely warranted in concluding that the sale was to the defendant alone, upon his credit only, and that no credit whatever was given to Davis and the others. And the evidence, if it led to this conclusion, was admissible under the count for goods sold and delivered.

If the credit was given entirely to the defendant, and it was agreed that he alone should be responsible, and in fact the sale was to him, though the goods were delivered to, or for the use of another person, the statute does not apply ; and the defendant is liable, on his parol agreement, under a common count for goods sold and delivered. Ch. on Con. 202; 1 Saund. 211, a, note; Cahill v. Bigelow, 18 Pick. 369.

The charges on the books of the plaintiff to Davis, &c., are competent evidence that the sales were made to them, and upon their credit; but they are not conclusive, and are open to explanation. It is for the jury to judge, upon all the evidence, to whom the credit was given, and whether the agreement of the defendant is original, or collateral. Keate v. Temple, 1B. & P. 158; Larson v. Wyman, 14 Wend. 246; Simpson v. Penton, 2 C. & M. 430; Anderson v. Hay-man, 1 H. Bl. 120. The instructions of the court were correct, and there must be

Judgment on the verdict.