Pennell v. Pentz , 4 E.D. Smith 639 ( 1855 )

Ingraham, First J.,

for affirmance. This action was for goods sold and delivered, and the defence the statute of frauds. Upon the trial, it appeared that one Blumenrother applied to Thornton, the assignee, to purchase from him some stone ,* that a negotiation as to prices and terms took place, when Thornton agreed to furnish the stone at a certain price. He then asked what guarantee Blumenrother would give for the payment of the amount, and he replied, General Pentz. The latter parties then went to the defendant, who, on being informed of their object in calling, said he would not guarantee to pay for the stone unless Blumenrother would assign him the contract. This was agreed to. The contract was assigned, and the defendant told Thornton he could go on and furnish the materials for the contract, and he would pay him, as no other person could draw the money on the contract but himself.

Subsequently, on applying for money, the defendant told Thornton he must apply for money to Blumenrother, as he could only advance the money to him, in order that he (the defendant) might charge his commissions; and Thornton did so. After the work was done, an order for the amount was, in pursuance of the defendant’s direction, drawn on the defendant, payable when funds were received on the contract.

Upon these facts the court below dismissed the complaint, upon the ground that the promise of the defendant was to pay the debt of another, and therefore within the statute of frauds.

It must be apparent that the ruling of the court was correct, if the defendant was not the purchaser. The action was for goods sold and delivered to the defendant, and whether the contract was or was not good under the statute of frauds, there could he no recovery if the goods were sold to Blumenrother.

It may he that under a proper complaint a recovery might be had upon proof of the defendant’s promise to pay the debt of Blumenrother out of the moneys assigned to him by the assignor. Such a contract is not within the statute of frauds. (See Canfield v. Morgan, 12 J. R. 346; McMurray v. Ferris, 3 ib. 71; Morton v. Naylor, 1 Hill, 583.)

The evidence in this case shows facts from which it is apparent that the credit was not entirely given to the defendant. The contract was made with Blumenrother, the price agreed on with him, the goods delivered to him, payments made by him, the order for the balance drawn by him, and the vendor asking not for the principal indebtedness, but for a guarantee from the defendant. Under such evidence no other conclusion could be drawn but that Blumenrother was treated as the debtor, and the defendant as the security, who was to pay the debt out of a specific fund in his possession belonging to Blumenrother, while the declaration of the defendant that he wanted to procure or charge commissions to him, shows that he was acting rather as an agent than as a principal.

The court below was right, under such a state of evidence, in holding that the defendant was not the principal debtor. These views are sustained by the cases of Brady v. Sackrider, 1 Sandf. S. C. R. 514, where it is held, that if the whole credit be not given to the person who comes in to answer for another, his undertaking is collateral, and must be in writing; of Dixon v. Frazee, 1 E. D. Smith, 32; and of Brewster v. Silence, 4 Selden, 207.

The judgment should be affirmed.