Jones v Cooper
Jurisdiction | England & Wales |
Judgment Date | 25 November 1774 |
Date | 25 November 1774 |
Court | High Court |
English Reports Citation: 98 E.R. 1058
IN THE COURT OF KING'S BENCH, CHANCERY AND COMMON PLEAS
S. C. Lofft, 770. Over-ruled, Matson v. Wharam, 1787, 2 T. R. 80.
jones versus cooper. Friday, Nov. 25th, 1774. A parol promise to pay for goods sold to B., if B. did not pay for them, though made before delivery of the goods, is a collateral undertaking within the Statute of Frauds. [S. C. Lofft, 770. Over-ruled, Matson. v. WTiaram, 1787, 2 T. E. 80.] Thia was an action for goods sold and delivered at the instance of the defendant. Plea, non aaaumpsit, and verdict for the defendant. Upon a rule to shew cause why a new trial should not be granted, the case appeared from the report of Mr. Justice Nares, who tried the cause, to be shortly this : The [228] defendant had frequently given written orders to the plaintiff to deliver goods of different kinds to one Smith, her son-in-law; in all of which she undertook to be answerable for the payment. These had been all punctually discharged. But the goods upon which the present question arose were delivered to Smith, in consequence of a parol order and a parol promise by the defendant in these words, "I will pay you, if Smith will not."-That the undertaking was before the delivery of the goods; but that Smith was entered as the debtor in the plaintiff's books. Mr. Mansfield and Mr. Buller, in support of the rule. The single question is, whether the promise which is the ground of the plaintiff's action, is to be considered as a collateral promise within the Statute of Frauds; or whether it is not an original undertaking upon the credit of which the goods were supplied to Smith 1 The words of the atat. 29 Car. 2, c. 3, are, " That no action shall be brought whereby to charge a person upon any special promise to answer for the debt or default of another, unless the agreement upon which such action is brought, shall be in writing." This is not an undertaking for the debt of another; but an original contract upon the confidence of which the debt first accrued : therefore not within the statute; and so it was held in Mawbrey versus Cunningham, sittings after Hil. term, 1773. There goods were delivered to A., at the request of B., who said he would see them paid for. Lord Mansfield held, that as the promise was before delivery of the goods, it was not within...
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