Taylor v. Lee, 187 N.C. 393 (1924)

March 12, 1924 · Supreme Court of North Carolina
187 N.C. 393

L. TAYLOR et al. v. H. F. LEE et al.

(Filed 12 March, 1924.)

Statute of Frauds — Promise to Answer for Debt of Another — Evidence— Motions — Nonsuit—Questions for Jury.

It does not require a writing within the statute of frauds to answer for the debt, default, or miscarriage of another (O. S., 987), where the prom-issor directly assumes the debt or has a pecuniary interest therein; and where a landlord has obtained supplies to be furnished to his tenant within the coming crop year, upon his promise to see that the tenant pay for them, it is sufficient to deny the promissor’s motion to nonsuit in an action against him by the furnisher of the supplies to recover for their payment.

Appeal by defendant, H. E. Lee, from Grady, J., at September Term, 1923, of DupliN.

Civil action tried upon tbe following issues:

“1. Did tbe defendant H. E. Lee promise and agree to become bound to tbe plaintiffs for supplies furnished to B. D. Parker during tbe year 1920, as alleged in tbe complaint? A. Yes.

“2. If so, in wbat amount is tbe defendant Lee indebted to tbe plaintiffs by reason of said contract? A. $1,552.60 and interest.

“3. In wbat amount is tbe defendant Parker indebted to tbe plaintiffs for supplies furnished him during tbe year 1920? A. $1,552.60 and interest.”

From a judgment of $1,552.60, rendered jointly and severally against tbe two defendants, tbe defendant H. E. Lee appeals.

Langston, Allen & Taylor and B. D. Johnson for plaintiffs.

Stevens, Beasley & Stevens for defendant.

Stacy, J.

Appellant’s chief exception, as stressed on tbe argument and in bis brief, is tbe one addressed to tbe refusal of tbe court to' grant bis motion for judgment as of nonsuit, made first at tbe close of plaintiffs’ evidence and renewed at tbe close of all tbe evidence, and based upon tbe ground that appellant’s special promise to plaintiff, which was not in writing, was to answer for tbe debt, default or miscarriage of bis codefendant Parker, and was therefore void under tbe statute of frauds. O. S., 987.

It was in evidence that tbe defendants, Lee and Parker, landlord and tenant respectively, went to tbe plaintiffs’ store and made arrangements with them whereby tbe plaintiffs were to furnish tbe defendant Parker with certain supplies during tbe year .1920. Plaintiffs understood that Lee was to be responsible for whatever Parker bought. He said to *394the plaintiffs: “Mr. Parker will be on our land this year and you sell him anything he wants and I will see it paid.” Almost this identical language was held in Whitehurst v. Padgett, 157 N. C., 424, to be sufficient to warrant a finding that the promise was an original one and not within the statute of frauds, if made at the time or. before the debt was created, upon sufficient consideration, and credit was given thereon solely to the promissor or to both promissors as principals, or if the promise were based upon a new consideration of benefit or harm passing between the promissor and the creditor, or if the promise were for the benefit of the promissor and he had a personal, immediate and pecuniary interest in the transaction in which a third party was the original obligor. See Peele v. Powell, 156 N. C., 553, and cases there cited.

In the instant case there was no exception to the charge, and we think the case was properly submitted to the jury. The verdict as rendered was warranted by the evidence.

No error.