Nesbitt v. Pioche Con. M. Co.

Plaintiffs, as co-partners, sued the defendant to recover judgment in the sum of $4,928 53 for goods, wares, and merchandise sold and delivered, and for the hire of teams furnished. The answer denied the indebtedness. The case was tried by the court without a jury.

The facts, as disclosed by the testimony on the part of the plaintiffs, were that one Denton had contracted with defendant to furnish coal to be used at its furnaces. Plaintiffs, as merchants, had furnished Denton supplies for a time. Later they declined to extend his credit. The superintendent of defendant then met with plaintiffs, and such agreement was reached, it is claimed, as to make defendant liable, in connection with the other facts, for the account subsequent to January 8, 1891. If the defendant is liable, it is upon facts constituting an original promise, and not by any written promise made to the plaintiffs. Evidence was adduced tending to prove that the superintendent had promised to pay for the goods; that, if the pay days should be too far apart, he would give a special draft; and that the company had paid upwards of $4,000 on the account.

Upon the close of plaintiffs' case, defendant moved for a non-suit upon the ground that the promise made was within the statute of frauds, and should have been in writing. The court granted the motion. For the purposes of the motion the evidence should be taken as true. Considering it as true, there is in the above statement evidence tending to support plaintiffs' contention. They may ultimately fail to recover upon the merits of the whole case, but we cannot say, as matter of law, that there is no evidence tending to support their case.

Judgment reversed, and cause remanded.