Greenville Ice & Coal Co. v. Venters, 192 N.C. 811 (1926)

Sept. 29, 1926 · Supreme Court of North Carolina

192 N.C. 811

GREENVILLE ICE AND COAL COMPANY v. H. C. VENTERS.

(Filed 29 September, 1926.)

Contracts — Statute of Frauds — Direct Obligation to Pa.y Debt of Another.

An original or direct promise to pay for a commodity or merchandise on the order of the promissor does not fall within the meaning of our statute of frauds, requiring the promise to be in writing to bind the promissor.

Civil aotioN, tried before Nunn, J., and a jury, at May Term, 1926, of Pitt.

The plaintiff instituted an action against the defendant to recover the purchase price of certain coal sold by the plaintiff to the defendant, but delivered to the Greenville Shelmardine Eailroad. There was evidence tending to show that the defendant came to the office of the plaintiff and requested the plaintiff to furnish to the railroad such coal as might be required, and that he would pay therefor. The defendant denied that he had made any such contract with the plaintiff, but that the coal had been purchased for the use of a railroad in which the defendant was interested, and the debt was the obligation of the railroad.

Issues were submitted to tbe jury and answered in favor of tbe plaintiff.

From judgment on tbe verdict tbe defendant appealed.

Albion Dunn for plaintiff.

L. W. Gaylord for defendant.

Per Curiam.

Tbe only question of law presented is whether or not tbe debt was tbe original obligation of tbe defendant or whether be was secondarily liable tbereon.

The only exception in the record is to an excerpt from tbe charge of the trial judge as follows: “Ordinarily, when you become responsible for another’s debt, the contract must be in writing, but, if tbe promise is made before tbe goods, in this instance coal, is supplied, it need not be in writing.”

Tbe next paragraph in tbe judge’s charge is as follows: “So, if you find by the greater weight of tbe evidence, tbe burden being on the plaintiff, by tbe greater weight of the evidence, that tbe defendant promised and agreed to pay for such coal as plaintiff furnished to tbe railroad company, your answer to the first issue would be yes.”

It is too well established to require a citation of authorities that the charge of tbe court must be construed as a whole and in its entirety. Tbe statute of frauds does not apply to an original obligation of the promissor. Novelty Co. v. Andrews, 188 N. C., 59; Jenkins v. Holley, 140 N. C., 379; Peele v. Powell, 156 N. C., 553.

Tbe trial judge properly left with tbe jury tbe determination of tbe question as to whether tbe defendant expressly promised to pay the debt in litigation. Tbe jury has determined that issue in favor of the plaintiff.

No error.