Read & Emery v. Ladd , 1 Edm. Sel. Cas. 100 ( 1845 )

The Circuit Judge:

The verdict was clearly against law, for unless the defendant’s undertaking was original, and not collateral to the obligation of the principal debtors, it was void under the statute of frauds because it was not in writing.

The most favorable light in which the testimony could place "the ease for the plaintiffs was, that the promise of the defendant was made at the same time, and became an essential ground of the credit given to the principal debtor. But such a promise has been repeatedly held to be within the statute of frauds. (Leonard v. Vredenburgh, 8 J. R. 39; Larson v. Wyman, 14 Wend. 246.)

The time test is, whether there is any liability of the vendee to the vendor, for if there is, then the promise of the guarantor is collateral, and must be in writing. In this case it is evident from all the testimony that the defendant was regarded by both parties, at most, only as security for the payment of the debt by Crane & Stone. The sale was entered on plaintiff’s books as “ sold Crane & Stone, D. Ladd security,” and the bill was made out “ Messrs. Crane & Stone (through Daniel Ladd), bought of Read & Emery.”

In their letters the plaintiffs urge the defendant to get security from Crane & Stone, and to collect their debt, and they offer to pay him for his time and trouble. In the words of the learned judge who tried the cause, “in all their letters they held to him the language of his acting in their behalf, as their agent, giving him instructions to spare no pains, time or expense to secure and collect the claim, and they would reward him for so doing.”

This is entirely inconsistent with the only idea upon which the finding of the jury can be justified, that of regarding the defendant as the principal debtor, to whom the goods were sold, and from whom the plaintiffs expected payment in the first instance.

Hew trial granted, costs to abide the event.