Speers v. Knarr , 4 Pa. Super. 80 ( 1897 )

Opinion by

Rice, P. J.,

W. C. Sackett being about to build a house on a lot which he had contracted to buy from the defendant, applied to James Speers for lumber. The latter refused to furnish it unless he would bring an order from the defendant. Sackett reported this to the defendant, and the latter told Sackett to tell Speers to let him (Sackett) have the lumber and that he (the defendant) would fix it. This was substantially the language of the defendant as testified to by Sackett and two other witnesses who were present. John S. Speers, a brother of James Speers, testified, that about the same time the defendant told him to tell his brother to let Sackett have the lumber and he (the defendant), would pay for it. There was evidence that what the defendant said was communicated to James Speers, and that pursuant to the order and promise thus communicated to him he furnished the lumber. Therefore the case is the same as if the defendant had given the order to Mr. Speers in person. The learned trial judge instructed the jury : “ It is the duty of the plaintiff to satisfy the jury, by the weight of the testimony, that he sold this lumber, not on the credit of W. C. Sackett, but upon the promise made by Knarr that if he would deliver Sackett the lumber, he, the defendant, would fix it, meaning thereby that he would, pay for it.” There is scarcely room for doubt— especially in view of what he said to John Speers — that when the defendant said he would “fix it” he meant he would pay for the lumber. But as the meaning of words used in conversation and what the parties meant to express by them is for the jury to determine, the court in this, as well as in other parts of the charge, properly left the question to them: McFarland v. Newman, 9 W. 55-59; Brubaker v. Okeson, 36 Pa. 519; Maynes v. Atwater, 88 Pa. 496; Forrest v. Nelson, 108 Pa. 481; Hineman v. Matthews, 138 Pa. 204; Stoddart v. Price, 143 Pa. 537; Fulton v. Lancaster Co., 162 Pa. 294-297. In another portion of the charge the jury were instructed that in order to hold the defendant the lumber must have been furnished by Mr. Speers relying upon this contract; it must have been furnished upon the credit of the defendant. The defendant denied having made the promise as alleged by the plaintiff, but as the evidence so strongly preponderates in favor of the plaintiff’s theory it does not seem strange that the jury adopted it. At all events the verdict, construed in the light of the judge’s charge, may be regarded as a finding of the following facts upon sufficient evidence: (1) Mr. Speers refused to furnish the lumber upon Mr. Sackett’s credit. (2) The defendant, being informed of this, requested Mr. Speers to deliver the lumber to Sackett and promised that he, the defendant, would pay for it; (3) Mr. Speers delivered the lumber upon the defendant’s credit; (4) the- lumber was bought for and used in the construction of a house on land which the defendant contracted to sell to Sackett, but for which the latter had not paid the purchase money. Under the latter contract the defendant agreed to look to the land for the payment and not to hold Sackett personally liable therefor.

These facts being established we think the defendant was properly held liable, notwithstanding the fact that his promise was not in writing. It was not in form of a guaranty but it was unconditional; it was a promise to pay for goods to be delivered upon his order and upon his credit and not that of Sackett; and the effect was to subserve his personal interest. It was, therefore, an original undertaking, a promise to pay his own debt, and was not within the statute requiring promises to answer for the debt, default, or miscarriage of another to be in writing: Jefferson Co. v. Slagle, 66 Pa. 202; Weyand v. Crichfield, 3 Gr. 113; Merriman v. Liggett, 1 W. N. C. 379; Greenough v. Eicboltz, 1 Mona. 433; Boston v. Farr, 148 Pa. 220; Holmes v. Fitzpatrick, 173 Pa. 366, are eases more or less analogous to tbe present in their facts, and in all of them the promisor was held liable.

The principle upon which the cases of Eshleman v. Harnish, 76 Pa. 97, and Haverly v. Mercur, 78 Pa. 257, were decided does not control the case at bar. Here there was no change of relation alleged, and no presumption to overcome, that an existing relation between the defendant and a third person continued. No debt or obligation was created until the thing was done which the defendant requested to be done, and Ms obligation to pay for the goods delivered upon Ms order and his credit was none the less binding merely because benefit might accrue to a third person. Under the facts found by the jury the defendant became the principal debtor upon compliance with the order. It was sufficient if the verdict establishing those facts was arrived at from the clear weight of the evidence as in his final instructions the learned judge told the jury it must be.

We think the counsel for the defendant mistake the meaning of the excerpt from the charge specified m the third assignment of error. The meaning plainly was that whether the defendant said: “ I will see about it,” or “ tell Speers to let you have it,” would make no difference, and that in either case the defendant would not be liable if he did not agree to pay for it. The defendant’s expression, as given by the judge, was quite as favorable to the defendant’s theory as the expression as given by his counsel. Neither was a strictly literal quotation of the evidence, but there can be no doubt that the jury understood from what the judge said at this time as well as from the charge taken as a whole, that if the defendant did not expressly promise to pay for the lumber he was not liable. He has no just cause to complain of the charge upon that question.

Upon the facts found by the jury this was not a guaranty but an original, unconditional undertaking to pay for the lumber, and the principle referred to in the defendant’s point did not apply. It was properly refused, for the reasons given M the answer thereto.

The sixth assignment relates to remarks alleged to have been made by the plaintiff’s counsel in his closing argument to the jury. As the assignment is not printed and as the facts alluded to therein were not brought upon the record in any way, we dismiss it without further comment.

All the assignments are overruled and the judgment is affirmed.