On appeal from the Essex County Circuit Court.
For the appellant, William H. Kennedy (Thomas S. Murphy, of counsel).
For the respondents, William B. Kasen.
The opinion of the court was delivered by
PERSKIE, J. The question for decision in this cause is whether defendants' oral undertakings fall within the ban of our statute of frauds (Rev. Stat. 25:1-5; 2 Comp. Stat. 1709-1910, p. 2612, § 5) because they are promises to answer for the debt of another.
The complaint, sounding in contract, contains two counts. The first count charges that plaintiff and defendant Boon entered into a verbal agreement by the terms of which plaintiff agreed to sell and deliver liquor to The Jabberwock Club, and defendant Boon agreed to pay for the liquor so sold and delivered; that liquor was sold and delivered by plaintiff to The Jabberwock Club; and that defendant Boon has failed to pay for the same.
The second count repeats all the allegations of the first count. It additionally charges that on or about June 17th, 1937, the Jabberwock Country Club (the other defendant in this cause) took over the business formerly carried on by The Jabberwock Club, and agreed with plaintiff to pay Boon's indebtedness provided plaintiff would sell and deliver liquor to the new corporation; that liquor was sold and delivered to the new corporation, and that the Jabberwock Country Club refuses to pay Boon's indebtedness to plaintiff.
Counsel for plaintiff repeated, in substance, the allegations of both counts in his opening address to the jury. At the conclusion thereof, the learned trial judge, on motion of defendants' counsel, ordered a nonsuit as to both counts upon the ground that the oral undertakings were collateral; they were promises to answer for the debt of another, and, therefore, unenforceable under our statute of frauds, supra. Hence this appeal.
First: As to the first count. It is well settled that where the oral promise upon which suit is brought is an original one, and not merely a collateral undertaking, it need not be in writing. Hetfield v. Dow, 27 N.J.L. 440; Fitzgerald Spear Co. v. Kelly, 81 Id. 6; 83 A. 491; affirmed, 83 N.J.L. 626; 85 A. 1134; Schaefer v. Brunswick Laundry, Inc., 116 N.J.L. 268; 183 A. 175. The determinative test is to whom was credit in fact given. Hazeltine v. Wilson, 55 N.J.L. 250; 26 A. 79; Herendeen Manufacturing Co. v. Moore, 66 N.J.L. 74; 48 A. 525; Mulholland v. Jones, 83 N.J.L. 604; 83 A. 875. If there is proof in support of the allegations
in the complaint and in counsel's opening that the sale was made on the strength of Boon's credit the jury might well find that the promise was an original one. Thus, under the circumstances exhibited, the question as to whether Boon's undertaking was original or collateral was factual, and required submission to the jury. Mulholland v. Jones, supra (at p. 606); Paul & Hoffman v. Haber, 88 N.J.L. 379; 96 A. 41; Farinella v. Di'Chaira, 100 N.J.L. 397; 126 A. 329.
Second: As to the second count. Upon the meager record submitted, we are not willing to determine the validity of any judgment, upon this count, in advance of the proofs. And since this cause is to be re-tried, and counsel may conclude again to proceed on this count (this is not to be understood as an intimation of the course to be or not to be followed), we have ...