Myer v. Grafflin

Miller, J., delivered the opinion of the Court. There is no difficulty about the construction of the part of the fourth section of the Statute of Erauds relied on by the appellee as. a defence to this action. That is clearly ³⁵⁵ settled by tbe case of Elder vs. Warfield, 7 H. & J., 391 , which has been followed and approved by all the subsequent decisions in this State upon the same subject. To ascertain whether the defendant’s undertaking was collateral or original, the point of inquiry in the case before us is, to whom was the credit given at the time of the sale and delivery of the goods, and we are clearly of opinion the Court below erred in taking from the jury the determination of this question by granting the defendant’s first prayer.

The refusal of a similar instruction in Elder vs. Warfield was affirmed by this Court upon evidence less favorable to the plaintiff, and the defendant’s counsel has conceded the granting of his prayer would have been erroneous, but for the decision in Cropper vs. Pittman, 13 Md., 190 . There is not only no conflict between the two decisions, but the latter expressly recognizes and adopts the former. The doctrine of both, as well as of Connolly vs. Kettlewell, 1 Gill, 260 , is that where credit is given to one on the promise of a third party “ to see-him paid,” the undertaking of the latter is collateral and void under the Statute, unless in writing, and where the party undertaken for is originally liable on the same contract, the promise to answer for that liability is a collateral and not an original undertaking, unless there is a new and superadded consideration moving between the-party promising and him to whom the promise is made. But it is conceded in Cropper vs. Pittman that it does not follow in every case where the words “ I will see the bill paid” are used, they necessarily import a collateral undertaking.

If accompanied by other words or facts sufficient to authorize a jury to find from all the evidence that credit was given to the party using them and the jury so find, he will be held responsible. It is decided in Cropper vs. Pittman, following in this respect Connolly vs. Kettlewell, that such words standing alone import a collateral undertaking, ³⁵⁶ and the jury must be so instructed as to their legal effect. In that case the defendant introduced his brother to the plaintiff, saying, his brother intended to go into