Threadgill v. . McLendon , 76 N.C. 24 ( 1877 )

The facts in the case do not put the defendant in a very favorable light. The defendant had a lien on the crop and was bound to furnish his cropper with necessary supplies. To induce the plaintiff to furnish his cropper with the goods necessary to enable him to carry on the farming operations, the defendant promises the plaintiff, that if he would furnish the goods, he would see that they were paid for. Accordingly, the plaintiff let the defendant's cropper have the goods. At the end of the year, defendant took into his possession the cotton made by his cropper, which was more than enough to pay the account of defendant for the provisions he had let his cropper have and also the plaintiff's account for the goods he had furnished. Thereupon the defendant promised that he would pay the plaintiff, but afterwards on the pretext that the cotton was not enough to pay his own account and that of the plaintiff also, which pretext the jury find to be untrue, he refuses to pay the plaintiff, and as a defence to the action, relies upon a statute passed to prevent fraud.

His Honor, it may be, attached more importance to the fact — that the guano was charged on the books of the plaintiff to the defendant, and the goods furnished were charged to the cropper — than it deserved; that considering the fact, that the defendant was bound to furnish his cropper with necessary supplies and had a lien upon the crop, it ought to have been left to the jury, to say, whether the credit was not in the first instance given to the defendant and the entries on the book made simply to discriminate, what was for farm purposes, and what, for the personal use of the cropper and his family.

Assuming however, that the defendant was merely the surety of his cropper, and that the original promise fell within the operation of the statute of frauds, we concur fully with His Honor in the conclusion, that the defendant was bound by his direct promise to pay, after he had taken the cotton crop into possession, and had in his hands the means, out of which to pay the plaintiff's account — cotton being a cash article and convertible at pleasure into money.

The purpose of the statute, was to protect sureties, by requiring the promise to be in writing as a guaranty of its being well considered; and it is settled, that a new consideration does not take the promise out of the operation of the statute, Stanly v. Hendricks, 13 Ire. 86. But it is also settled, that when the surety receives money out of which it is his duty to pay the debt, although his first promise cannot be inferred, the receipt of the money raises another promise by implication, upon which he is liable to an action "for money paid to his use," as in Hall v. Robinson, 8 Ire. 56; or for money "had and received for the use of the plaintiff," as in Draughan v. Bunting, 9 Ire. 10.

An attempt was made to distinguish our case, on the ground, that defendant had received cotton and not money. Two replies may be made; cotton being a cash article, after a reasonable time, the defendant in furtherance of justice, will be presumed to have converted it into money; but the more conclusive reply is: this action is not brought upon an implied promise, as in the cases cited, but is brought upon a directexpress promise to pay the plaintiff the amount of his account. This promise the defendant makes, not as the surety of his cropper, but for himself, by reason of his having in his hands, the fund out of which it ought in justice to be paid. So it is stronger than the two cases referred to.

No error.

PER CURIAM. Judgment affirmed.