Hendricks v. Robinson & Stevens

ChalmeRS, J.,

delivered the opinion of the court.

Robinson & Stevens sold goods, during the year, which were delivered to Hendricks, but which were charged to one Dulaney, who verbally became responsible for them before sale, and upon whose credit the account was opened. They instituted suit for the recovery of their value against Dulaney, but were defeated, upon the ground that he was a mere surety or guarantor, and his undertaking, being verbal, was void. They now bring this action against Hendricks, the party for whose benefit the account was opened, and who received and used the goods. It is evident that he is in no manner affected by the result of the litigation between plaintiffs and Dulaney, and his rights are to be determined without regard to that suit. The only questions to be considered are, whether he was originally bound for the goods, or has subsequently become so by any act or promise of his own. John W. Robinson, the senior member of the firm of Robinson & Stevens, testified that “ the goods were sold to Hendricks upon the *698 sole credit of Dulaney, and were charged to Dulaney on the books of the firm ; that at the trial of the said case of plaintiffs against Dulaney on said account, in the Circuit Court of Madison County, witness was also a witness for plaintiffs .in that case, and, as such, there and then testified that he never regarded Hendricks as liable on said account, and that Hendricks was not so held liable for the payment of the same, but that plaintiffs gave credit solely to Dulaney, and looked alone to him for payment.”

It seems needless to i’emark that, under these circumstances, there was no original indebtedness from Hendricks to plaintiffs. It was just as if a man of wealth, meeting a beggar in the street, should step with him into a shop-keeper’s and present him with a suit of clothes, which, by directions, are charged to the donor. There would, in such case, be no debt due the merchant from the recipient of the charity. The testimony of plaintiffs makes out a clear case of liability upon the part of Dulaney, but however much they may have been wronged in their litigation with him, they cannot urge the result of that suit as a reason why they should be allowed to recover in this. But, before the institution of this suit, the account was presented to Hendricks, who acknowledged its correctness and promised to pay it. Does this make him liable ? It was so ruled by the learned judge below, but we are unable to see upon what sound principle. If it was wholly and solely the debt of Dulaney, as plaintiffs testify that it was, Hendricks could not bind himself by parol to pay it, except through an arrangement by which, on a sufficient consideration, he became substituted for Dulaney, and the latter was discharged; and there is no pretence of auy such arrangement having been made. The legal question involved in this class of cases has usually arisen in suits where some person other than he who received the goods denied liability for them, nor have we found a case where the defence was so made by him who received and used them ; but we cannot see that this affects the principle.

*699 The parol promise of the beneficiary to pay the debt of him who, by his credit, has procured the goods, is as invalid as a like promise by the surety where the primary obligation rests upon^the beneficiary. The object and intent of the statute is to deny the imposition of a liability, by parol, upon two persons to pay the debt of one. Whenever, therefore, there is a primary liability upon one, there can be no secondary liability fastened upon the other, save by writing; and it is wholly immaterial whether the person sought to be charged is he who got the benefit of the contract, or he who procured it to be made for the benefit of another.

Neither can the validity of Hendricks’s parol promise to pay for the goods be 'sustained upon the idea that, having used them, there rested upon him such moral obligation to pay for them as will support his contract. Whatever may have been the earlier ideas on this subject, it is now well settled that a purely moral obligation will not ordinarily support an execu-tory contract. There must be a legal obligation, which is either enforceable, or which only fails to be so because of the existence of some exceptional circumstances which operate to suspend enforcement. The doctrine is thus stated in 3 Bos. & Pul. 249: “An express promise can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise had it not been suspended by some positive rule of law, but it can give no original right of action if the obligation on which it was founded never could have been enforced at law, though not barred by any legal maxim or statute provision.” To this effect are all the well-considered modern cases, both in England and America. Pars, on Con. (5th ed.) 432 et seq., and cases cited in notes; Porterfield v. Butler, 47 Miss. 165 .

The case of Franklin v. Bentley, 27 Miss. 350 , which held that the invalid contract of a married woman would impose such moral obligation as would support a subsequent valid promise to pay, is virtually overruled by the later case of Porterfield v. Butler, supra. The first case was rested upon the *700 case of Lee v. Muggeridge, 5 Taun. 36, which has been repeatedly repudiated both in England and America. 1 Pars, on Con., supra.

There being no legal obligation upon defendant in the case at bar to pay for the goods, the fact that they had been bought for and used by him does not afford such moral obligation as will support his parol promise to pay for them.

The instructions of the court below were not in accordance with the views announced, and were erroneous. The instruction with reference to the Statute of Limitations was correct.

Judgment reversed and cause remanded.