Opinion
MARCH TERM, 1788.
AN appeal being entered from the judgment of Isaac Howell, Esquire, one of the Justices of the city of Philadelphia, c. on the trial of the cause, it appeared, that the Defendant went to the store of the Plaintiffs, and bought some articles, for which he afterwards paid; that, at the same time, he carried with him one Hawke, a joiner, who complained that he was frequently distressed in his trade, for want of a small credit; whereupon the Defendant told the Plaintiffs, that he did not think they would suffer by trusting him for two or three dollars, as he was an industrious and honest man, and that he (the Defendant) would fee the money paid; that the Plaintiffs accordingly delivered to Hawke sundry articles at different times proper for his trade, as a carpenter and joiner, amounting to £ 5 and upwards; that at the distance of 9 months, having enquired after Hawke and found he had eloped, they send an account for those articles to the Defendant, who was charged in their Shop book (which Poultney, one of the Plaintiffs, proved to be their book of original entries) as the absolute purchaser; and that before the Justice, from whose judgment the appeal was made, the Defendant, though he insisted that all the articles were not for his use, acknowledged the receipt of some of them.
Upon these facts the question arose, whether the entry in the Plaintiffs shop book, attested by one of them, upon solemn affirmation was sufficient, in this case, to charge the Defendant? And the President delivered the following charge to the Jury.
As the law that has prevailed upon this subject, is adapted to the peculiar situation of the country, it will naturally differ from the law which is established in other places, under different circumstances. Thus, though in England, the shopbook of a tradesman is not evidence of a debt, without the assistant oath of the clerk who made the entry; yet here, from the necessity of the case, as business is often carried on by the principal, and many of our tradesmen do not keep clerks, the book, proved by the oath of the Plaintiff himself, has always been admitted. The practice, in this respect, however, has been confined to charge the original debtor, to whom the goods were sold; for, the necessity of the case only required, that the Plaintiffs oath should be allowed to prove the actual delivery; and it would be highly dangerous, if the evidence were extended to establish the assumption of a third person to pay the debt.
It is the duty of the Jury, therefore, to consider, whether the Defendant, on the present occasion, is the original debtor, of merely a person assuming to pay the debt of another. If, indeed, it appears, that he has sent a servant, or tradesman, for these goods, on his own account, he is clearly liable; for, when they come to his use, that makes him the original debtor. But, if I go to a shop with a joiner, and say to the matter, "I will fee you paid for the articles with which you trust this man;" here, though I am liable upon proof of this undertaking, yet it is not in the character of the original debtor, for the joiner who received the goods is the original debtor; but it is on account of what the law terms my collateral promise; which cannot be proved by the testimony of the party interested, but, may by a note in writing, or by some indifferent witness to the transaction.
In the case before us, the evidence of the Justice (Mr. Howell) is not certain as to the circumstances; for, the goods were delivered in small parcels, from time to time; they were such as suited the joiner's business; and, even from the Plaintiff's own account, they were applied to his use, though the Defendant was considered to be liable for the payment. Whether these facts, therefore, and the Defendant's previous purchase at the Plaintiff's store, will account for the acknowledgement of having received a part, the Jury must determine. But it they are of opinion, that the Defendant has only assumed to pay the debt of another person, the Plaintiffs cannot be witnesses in the cause, and, consequently, there is no proof of the assumption. On the contrary, it they think the Defendant is the original debtor, the Plaintiffs are witnesses to prove the entry in their book, and they are entitled to recover the amount of their demand.
VERDICT for the Defendant.