Gaines v. Durham , 124 S.C. 435 ( 1923 )

May 8, 1923. The opinion of the Court was delivered by Action for $71.61 upon an account for fertilizer sold by the plaintiff to the defendants.

Masters owned the land upon which the fertilizer was to be used, and Durham was his tenant.

The evidence tends to show that Durham applied to the plaintiff for the fertilizer, and the plaintiff, knowing that Durham was a tenant upon the land of Masters, before allowing Durham to obtain the fertilizer, went to Masters and asked him about selling to Durham; that Masters said, "Let Durham have what he wants and I will see that it is paid"; that Durham got the fertilizer, and it was charged upon the plaintiff's books to both Durham and Masters; that plaintiff made frequent efforts to collect from Durham and, failing, made demand upon Masters, which being refused, suit was instituted in Magistrate's Court against both.

The case was tried by a jury, which rendered a verdict in favor of the plaintiff against Masters alone; no reference being made to Durham.

Defendant, Masters, appealed to the Circuit Court, taking by his exceptions the following positions: (1) That the undertaking of Masters was not an original one, but collateral, to answer for the debt of Durham, and, not being in writing, was obnoxious to the Statute of Frauds. (2) That the undertaking of Masters being collateral only, if valid, the verdict should have been against both defendants.

Upon the hearing of the appeal, the Circuit Judge overruled the defendant's exceptions and affirmed the Judgment of the Magistrate's Court.

The defendant now appeals to this Court upon the same grounds made upon the appeal to the Circuit Court.

As to the first position: Masters being the landlord of Durham, was vitally interested in his obtaining fertilizer for use in the cultivation of the crop, and, under these circumstances, his undertaking to see that what he obtained was paid for was an original and not a collateral undertaking.

In Lorick v. Caldwell, 85 S.C. 94; 67 S.E., 143, the Court approved the following:

"Wherever the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form, a promise to pay the debt of another."

In Tindal v. Touchberry, 3 Strob., 177; 49 Am. Dec., 637, it is said:

"In the case of Farley v. Cleveland (4 Cow. N.Y., 432), it was held that where the promise was founded upon a new and original consideration, of benefit to the defendant, or hurt to the plaintiff, the subsisting liability of the original debtor was no objection to the recovery."

In Hindman v. Langford, 3 Strob., 207, quoting from the syllabus, it is held:

"A promise is taken out of the statute by a new and distinct consideration, coextensive with it, and moving not to the third person, but to the promisor; not mere loss to the promisee but gain to the promisor."

The Court said:

"Langford's agreement was a promise to answer for the debt of a third person who was still held liable; but it was founded upon a new and distinct consideration, coextensive with it, and moving not to the third person, but to the person who made the promise."

In Ellis v. Carroll, 68 S.C. 376; 47 S.E., 679; 102 Am. St. Rep., 679, the same principle is announced. Also inTurner v. Lyles, 68 S.C. 392; 48 S.E., 301. See, also,Robertson v. Hunter, 29 S.C. 9; 6 S.E., 850, citing 3 Parsons, Cont., 24; Rice v. Medlin, 116 S.C. 213;107 S.E., 911. (The Reporter will append hereto in a note the circumstances in the Rice v. Medlin Case, which the Court held to have constituted an original undertaking, imperfectly set forth in the report of that case.) In Eggart v.Barnstine, 3 McCord, 162; 15 Am. Dec., 625, it is held that if the contract import a benefit to the promisor, it will be deemed an original undertaking.

In Emerson v. Slater, 22 How., 28; 16 L.Ed., 360, the Court said:

"Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability."

See, also, Davis v. Patrick, 141 U.S. 479;12 Sup. Ct., 58; 35 L.Ed., 826. Hurst Hardware Co. v. Goodman,68 W. Va., 462; 68 S.E., 898; 32 L.R.A. (N.S.), 598; Ann. Cas. 1912B, 218. Saginaw M. Co. v. Mower,154 Mich., 620; 118 N.W., 622. McGowan Co. v. Coal Lumber Co., 41 Mont., 211; 108 Pac., 655. Steed v. Day (Tex.Civ.App.), 164 S.W. 1057. Davies v. Carey,72 Wn., 537; 130 Pac., 1137.

"If a person claimed to have made the promise to pay the debt of another is interested in the business of such other and primarily to protect his own interests made such promise, it is an original undertaking, and it is not necessary to its validity that the party to whom the promise was made and who sold and delivered the merchandise should have intended to hold the promisor alone responsible." Peters v.Raven, 159 Ill. App., 122.

In Henderson v. Hughes, 4 Ga. App., 52; 60 S.E., 813, where supplies were furnished to a tenant upon the landlord's promise to see the account paid, it was held:

In such case the authority to sell to the tenant, given by the landlord to the merchant, is an original undertaking. and not an agreement to pay the debt of another." (From the syllabus by the Court.)

In Whitehurst v. Padgett, 157 N.C. 424;73 S.E., 240, the facts were these, practically identical with those in the case at bar: The tenant applied to the merchant for fertilizer to be used on the landlord's land. The merchant did not furnish it until after he had seen the landlord. The landlord told him, "All right, go ahead and furnish Padgett [the tenant], and I will see that you get your money." The Court held that the undertaking of the landlord was original, saying:

"A promise is not within the Statute of Frauds if it is based upon a consideration and is an original one, and that it is original * * * if the promise is for the benefit of the promisor and he has a personal, immediate, and pecuniary interest in the transaction."

In Lovell v. Haye, 85 Wn., 109; 147 Pac., 632, the facts were these: The landlord told the merchant to let the tenant "have what he wanted, and he would pay him dollar for dollar"; at least there was evidence tending to prove that, although it was denied by the landlord. The Court held that if the merchant's version of the matter was sustained, the undertaking of the landlord was original upon the ground of the landlord's personal interest:

"On the other hand, Haye [the landlord] had an interest in seeing that Gibson [the tenant] was supplied with such goods, for otherwise he would not have been able to carry on the harvest operations."

As to the second position: This is based upon the theory that the undertaking of Masters was collateral. As has been shown, there was abundant evidence to sustain what was indirectly the conclusion of the jury and of the Circuit Judge on appeal that the undertaking was original; there is no foundation for the exception covering this position.

Besides, if there had been any force in the position it should have been urged upon a request to charge or a motion for a new trial, neither of which was done.

There is evidence from which the Court below may have come to the conclusion that the credit in this transaction was extended to both of the defendants, as principals, jointly liable. There is respectable authority for holding that under such circumstances the promise is not to answer for the debt of another, and that the statute does not apply. See 27 C.J., 144, § 29. As the point has not been raised or discussed, we are not to be understood as passing upon it.

The judgment of this Court is that the judgment appealed from be affirmed.