Booth v. Heist ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

This suit was to recover for lumber furnished by Heist in the erection of certain buildings. They were erected on land conveyed to Meredith by Booth. At the time of sale of the land the latter agreed to advance to Meredith $2200 on each house, which he covenanted to build thereon, to secure the purchase-money and advances to Booth. The lumber was delivered to Meredith but charged to Booth. Heist testified that after he had furnished a little lumber to Meredith he saw Booth, and they talked the matter over. That Booth said “ he expected to do considerable building and to get the lumber of me. I told him I would be pleased to furnish him with the lumber. Less than a month thereafter I saw Mr. Booth at his office. I told him that I was furnishing lumber and charging it to him, and wanted to know if that was right. His answer was evasive. I went down stairs. I went back again and said to him, Mr. Booth I am furnishing this lumber and charging it to you, and if it is not all right I want you to say so. He said it was all right provided he got a certain deed of property there — one of the properties that had been built.” He informed Meredith of the conversation with Booth, and “went on to deliver lumber.”

Meredith testified “the deed was executed to Mr. Booth, to . which he referred in his conversation with Heist. Mr. Booth' paid me $500, leaving a balance of $600 in his hands. Bills were charged to Mr. Booth, and I left that money there to pay them.”

This evidence was clearly sufficient to submit to the jury as tending to prove two things: the one, that sufficient money was left in the hands of Booth to pay for the lumber, and that it was left for that purpose, the other, that the lumber was delivered on Booth’s credit, and on his express agreement to pay therefor. If the evidence was believed it .did not show a promise to assume and pay the debt of another. It was an original promise and undertaking by Booth. It was never charged to Meredith or delivered on his credit. It was no transfer of an obligation to Booth that had once attached to Meredith. The evidence then was most ample to submit to the jury to find whether Booth was not the original and sole debtor. The case was fairly submitted in a charge as favorable as the plaintiff in error was entitled to. We see no error in any of the assignments.

Judgment affirmed.