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41 N.H. 388

Walker v. Richards

Supreme Court of New Hampshire

Decided December 15, 1860

Supreme Court of New Hampshire · decided 1860-12-15

<p>Under a count alleging that the defendant, in consideration that the plaintiff, at his request, would sell and deliver to a third person such goods as the latter should wish to buy of him while he worked for the defendant, promised to be accountable for the same, and see him paid, &c., it was held, that the promise, as alleged, was within the statute of frauds, and could be proved only by writing.</p> <p>Under the general count for goods sold and delivered to the defendant, it was held, that the plaintiff might recover if it appeared that the credit was given to the defendant alone, and that the goods were delivered to the third person by his direction.</p> <p>A charge of the goods upon the plaintiff’s books to the third person, may not be conclusive that the goods were sold on his credit; but it may be shown that they were so charged for the convenience and at the request of the defendant.</p>

Relies on Larson v. Wyman · Walker v. Richards · Skinner v. Conant

Good law ✅— No negative treatment on recordhow we know

Decided 1860-12-15

How this case has been cited

Cited by 6 later decisions (1 by the Supreme Court) — most recently June 1918

5 state decisions

30186018701880189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Bell, C. J.

¶1Under the special counts the sale is alleged to be to Davis, &c., on credit, of goods he desired to buy; the credit is given to Davis, &c., and Davis, &c., is the debtor for the price. The contract of the defendant is entirely collateral. This contract, as stated, is a valid and legal contract. But, by the statute of frauds, it requires special proof to establish it. The contract must be in writing, and signed by the party, and parol evidence is inadmissible to establish such an agreement. The objection taken to the evidence, as applicable to these counts, was well founded. Carville v. Crane, 5 Hill 483; Wharam v. Matson, 2 T. R. 80; Anderson v. Hayman, 1 H. Bl. 120; Buckmyr v. Darnall, 2 Ld. Raym. 1085; Watkins v. Perkins, 1 Ld. Raym. 224; 1 Saund. 211, a, note; Jones v. Cooper, Cowp. 227; Skinner v. Conant, 2 Vt. 453; Rains v. Story, 3 C. & P. 130; Peckham v. Faria, 3 Doug. 13; Larson v. Wy-man, 14 Wend. 246; Walker v. Richards, 39 N. H. 259.

¶2As there was in this writ a count for goods sold and delivered by the plaintiff to the defendant himself, there is no difficulty as to the statute of frauds, unless the contract proved is to pay the debt of another. In this case the jury, upon the evidence, would be entirely warranted in concluding that the sale was to the defendant alone, upon his credit only, and that no credit whatever was given to Davis and the others. And the evidence, if it led to this conclusion, was admissible under the count for goods sold and delivered.

¶3If the credit was given entirely to the defendant, and it was agreed that he alone should be responsible, and in fact the sale was to him, though the goods were delivered to, or for the use of another person, the statute does not apply ; and the defendant is liable, on his parol agreement, *391under a common count for goods sold and delivered. Ch. on Con. 202; 1 Saund. 211, a, note; Cahill v. Bigelow, 18 Pick. 369.

¶4The charges on the books of the plaintiff to Davis, &c., are competent evidence that the sales were made to them, and upon their credit; but they are not conclusive, and are open to explanation. It is for the jury to judge, upon all the evidence, to whom the credit was given, and whether the agreement of the defendant is original, or collateral. Keate v. Temple, 1B. & P. 158; Larson v. Wyman, 14 Wend. 246; Simpson v. Penton, 2 C. & M. 430; Anderson v. Hay-man, 1 H. Bl. 120. The instructions of the court were correct, and there must be

¶5 Judgment on the verdict.

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