Norris v. Graham

Brent, J., delivered the opinion, of the Court. In'this case the appellee, who was plaintiff below, instituted proceedings in attachmenPto recover from the appellant the value of forty-five cords of wood furnished to a third party. At the trial of the short note case, the plaintiff, after the testimony was closed, offered two prayers, — both of which were granted by the Court, — and the defendant four — the first and fourth of which were granted, and the second and third refused. To this action of the Court the defendant excepted, and the questions presented on this appeal arise upon the instructions granted on behalf of the plaintiff, and the rejection of the second and third prayers of the defendant.

The Court, in granting the first prayer of the plaintiff, directed the jury “that if they find from the evidence that the wood in question was furnished to Joel R. Bollinger on the credit and responsibility of the defendant, then the verdict must be for the plaintiff.” This instruction is manifestly erroneous. The plaintiff by his proof vested his right to recover upon a parol contract, and he could only succeed by showing that credit was given solely and exclusively to the defendant. If any credit was given to Bollinger, the undertaking on the part of the defendant was collateral, and being in parol, was void under the Statute of Frauds. While there is testimony in the case to establish an original undertaking by the defendant on his sole and exclusive credit, there is also testimony from which it might have been inferred that some credit was given to Bollinger, and that the responsibility of the defendant was only collateral.

The credit and responsibility of a party may attach as well to his liability as security, as to his sole undertaking. When, therefore, the general term “ credit and responsibility ” is used, it may include a collateral as well as an original and exclusive liability. The instruction before us was calculated in this respect to mislead the