Contract, What constitutes. Evidence, Admissions, Presumptions and burden of proof. Words, "Charged."
In an action of contract upon an account annexed for goods sold and delivered to a third person upon an alleged original promise of the defendant to pay for them, there was evidence that, before the goods were delivered, the defendant had sent to the plaintiff a letter in which he had stated that any such goods delivered after a date then two months past should be charged to him personally, that after receiving the letter the plaintiff had delivered the goods in question and had sent bills to the defendant which did not have on them the name of the defendant, but only the names of the third person and of the plaintiff, that the defendant had paid some of the bills and had stated to the plaintiff that, if he had sent the plaintiff the letter above referred to, he "supposed he would have to pay the bill." On the plaintiff's book of original entry the goods stood charged to the third person. Held, that the facts that the charges purported to be made to the third person and that his name appeared on the bills were not decisive that credit was not given to the defendant, and therefore that the question of the liability of the defendant was for the jury.
A statement in a letter to a tradesman that certain goods to be furnished by the tradesman to a third person should be "charged" to the writer of the letter is equivalent to a promise by the writer of the letter to pay the tradesman for goods so furnished.
The conduct of a tradesman, in putting charges for goods, furnished to a third person on the original promise of another to pay for them, on his books under the name of the third person, is merely an admission on the part of the tradesman to be considered with other evidence on the subject, including explanations by the tradesman of his reason for doing so; and therefore, in an action by the tradesman against the promisor, the judge need not charge the jury that such conduct is prima facie evidence against the plaintiff that he gave credit to the third person and not to the defendant.
SHELDON, J.
The defendant's first request for instructions could not have been given. There was evidence that on May 6, 1904, he promised in effect to pay for the milk and eggs to be furnished by the plaintiff to Miss Squire; that the plaintiff furnished such supplies on the faith of that promise, and communicated this fact to the defendant by sending to him bills for the amount furnished from time to time, some of which bills the defendant paid. The fact that the charges purported to be made to Miss Squire and that her name appeared on the bills was not decisive that credit was not given to the defendant, or that the goods were not charged to him in the sense that he was expected to pay for them. James v. Spaulding, 4 Gray, 451. Holmes v. Hunt, 122 Mass. 505. Pettey v. Benoit, 193 Mass. 233.
The jury could find that the plaintiff had accepted the defendant's offer to pay for these supplies and had brought notice of his acceptance home to the defendant. Springfield v. Harris, 107 Mass. 532, 540.
For like reasons, the second request was properly refused. A distinction cannot be drawn between a request to charge goods to one personally and a direct promise to pay for them.
If any question as to the defendant's liability remained in doubt, the jury could find that the doubt was removed by the defendant's admission that he supposed he would have to pay the bill if he had written the letter relied on by the plaintiff.
The last request, so far as it was correct, was given in substance. Taken at its strongest, the conduct of the plaintiff in putting his charges under the name of Miss Squire and in making his bills run in her name was merely an admission on his part, open to explanation, and that is the way the judge put it to the jury. He was not bound to say that a particular piece of evidence was "prima facie evidence" for or against either party. That might have misled the jury. This point was sufficiently and accurately covered in the charge.
Exceptions overruled.