R. H. Day Co. v. Thomas

McLain, C.

R. Ii. Day Company, appellant, sued J. A. Thomas, appellee, in the justice of the peace court for seventy-three dollars and twenty cents, and obtained judgment against Thomas, and from this judgment he appealed to the circuit court of Newton county, and on the trial of the case in said court judgment was rendered in favor of Thomas, the appellee. Appellant, R. H. Day Company, prosecutes this appeal.

The question presented in this case is the liability of Thomas to R. H. Day Company for seventy-three dollars and twenty cents for merchandise delivered by appellant to Browd Roberts, a tenant upon the plantation of Thomas. Appellant testifies that its concern sold the goods on. credit and responsibility of the appellee, Thomas. Appellant furnished Browd Roberts along tliroug'h the year with merchandise to the amount of two hundred thirty-seven dollars, and sixty-five cents the payments of Browd Roberts upon this account reduced it to seventy-three dollars and twenty cents. Appellee admits he was liable for one hundred twenty-five dollars by virtue of an agreement between him and appellant. On the other hand, appellant claims that appellee is liable for the whole amount furnished Browd Roberts, as no specified amount was agreed upon between appellant, and appellee for Roberts to have.

Upon the trial in the circuit court, the jury found a. verdict for appellee, Thomas. On the trial, instruction No. 4, asked and given by the court for defendant, tells the jury expressly that, if the evidence did not show that the goods were charged to Thomas on the books, they should find' for defendant. The indisputable fact is the goods were charged to the tenant, Browd Roberts, on the books. This instruction, under the evidence, was in effect, a peremptory charge, not curable by any instruction in the record. Mere form of hookkeeping is not decisive. The goods may be charged on the books to one person, when another is the primary debtor, to whom the credit was really extended; and the test is, not to whom they were charged on' the books, but simply and solely to whom the credit was extended. Manifestly, this instruction charges that there could be no liability on the part of appellee, unless the goods were charged to him on the books of the appellant. The question whether the books of appellant showed that the goods were charged to Browd Roberts, or to appellee, Thomas, does not alone determine the issue of indebtedness or non-indebtedness of Thomas to R. H. Day Company.

For the error contained in this instruction, we think the case should be reversed and remanded.

Reversed and remanded.

Per. Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated by the commissioner the case is reversed and remanded.