Farmers Federation, Inc. v. Morris

Staoy, O. J.

Whether a promise is an original one not coming within the statute of frauds, or a collateral one required by the statute to be in writing, is to be determined from the circumstances of its making, the situation of the parties, and the objects sought to be accomplished..

Simmons v. Groom, 161 N. C., 271 , 83 S. E., 471 ;

Balentine v. Gill, 218 N. C., 496 , 11 S. E. (2d), 456 ;

Dozier v. Wood, 208 N. C., 414 , 181 S. E., 336 . Where the intent is doubtful, the solution usually lies in summoning the aid of a jury.

Whitehurst v. Padgett, 157 N. C., 424 , 73 S. E., 240 . The issue was properly submitted to the jury in the instant case.

Taylor v. Lee, 187 N. C., 393 , 121 S. E., 659 ;

Peele v. Powell, 156 N. C., 553 , 73 S. E., 234 , on rehearing, 161 N. C., 50 , 76 S. E., 698 .

The instant case comes well within the example put by Mr. Clark in his work on Contracts, 67: “If, for instance, two persons come into a store and one buys and the other, to gain him credit, promises the seller, 'If he does not pay you, I will,’ this is a collateral undertaking and must be in writing; but if he says, 'Let him have the goods and I will pay,’ or 'I will see you paid,’ and credit is given to him alone, he is himself the buyer, and the undertaking is original.”

In respect of the character of the promise, it was competent to show that the defendant had a personal, immediate and pecuniary interest in the transaction.

Balentine v. Gill, supra; Whitehurst v. Padgett, supra.

For this purpose, it was proper to inquire about his entire connection with the corporation.

In excluding the evidence offered and limiting the cross-examination to the time of the purchase of the supplies, the jury was left without a full knowledge of the facts and denied information regarding the defendant’s long-continued interest in the business which would have thrown some light on the matter. “Anything which shows the intention or the actual contract of the parties is material, and any evidence which goes to show the intention of the parties is admissible whether it be by way of conduct or documentary in nature.” 34 Cyc., 980, quoted with ap *469 proval in Henley v. Holt, 214 N. C., 384 , 199 S. E., 383 , and Potato Co. v. Jeanette, 174 N. C., 236 , 93 S. E., 795 .

Tbe examination was also pertinent as tending to impeach the defendant who testified on bis examination in chief that he had no conversation with plaintiff’s witnesses as detailed by them on the witness stand. “It is not required that the evidence bear directly on the question in issue, and it is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions.”

Bank v. Stack, 179 N. C., 514 , 103 S. E., 6 .

A new trial seems necessary. It is so ordered.

New trial.

"Winbobne, J., took no part in the consideration or decision of this case.