Elliot C. Cowdin et al., Respondents, v. Solomon Gottgetreu, Appellant

Elliot C. Cowdin et al., Respondents, v. Solomon Gottgetreu, Appellant. (Argued November 19, 1873; decided December 9, 1873.) While a person may become liable upon a parol promise for goods purchased which are delivered to and are intended for the use of another, in order to make him so the debt must be his only; he must be exclusively liable therefor. x To determine the question as to whether the transaction is a' sale to the promissor or a parol guaranty upon his part of payment by another, the language of the promise is to be construed in the light of the acts of the parties and the surrounding circumstances, and the question is one of fact. The fact that the vendor charged the goods directly to the promissor is not conclusive upon the latter. This action was to recover for goods alleged to have been sold to defendant. The goods were delivered to and were for the use of the firm of Mayer & Gottgetreu, the latter of whom was the son of defendant. Plaintiffs’ evidence tended to show that they had sold eleven pieces of goods to said firm and declined to sell them more upon credit, but that, upon the agreement of defendant to be responsible, they delivered to them forty-five more pieces, and thereupon erased the charge of the eleven pieces to the firm and charged all to defendant. It was not claimed that this was with defendant’s knowledge. Evidence was given also that a bill of the goods, made out to defendant, was delivered to him. This was denied by him. The referee found that defendant was not the purchaser, and that his obligation was to answer for the debt, default or miscarriage of another, which, not being in writing, was void under the statute of frauds, and directed judgment for defendant. The General Term reversed the judgment and granted a new trial. The order did not specify whether it was granted upon questions of law or fact. Meld, that it must be assumed that the reversal was upon questions of law, from the omission to state, in the order of reversal, that it was upon questions of fact; that whether the transaction was a purchase by defendant or a promise to pay the debt of another was simply one of fact; and as there appeared to be no error of law, the order was reversed; also held as above. E. Lomterbaoh for the appellant. B. F. Watson for the respondents. [MAJORITY — Church, Ch. J.,] Church, Ch. J., reads for reversal of order of General Term and affirmance of judgment on report of referee. All concur. Ordered accordingly.