This action by the plaintiffs, Henderson and Dempsey, against W.L. Skinner, defendant, was commenced in the Magistrate Court, Greenville County, March, 1927, by service of summons for debt, on an alleged promissory note executed by Henry McCally, who was not made a party to this action. To this allegation the defendant interposed a general denial. When the case was called for trial, on motion of the plaintiffs, the plaintiffs were allowed to amend by alleging "for goods sold and delivered at his (defendant's) instance and request." The defendant then "interposed the plea of the Statute of Frauds [Civ. Code 1922, § 5516], that the promise was collateral and void."
The case was tried by the Magistrate, R.P. Jones, without a jury, who rendered judgment for the plaintiffs in the sum of $50.10 and interest from October, 1926. From this judgment by the Magistrate, defendant appealed to the County Court of Greenville County, Hon. Martin F. Ansel, Judge, who modified the judgment by disallowing interest, but affirmed the judgment as to the $50.10, which amount is presumed to be the alleged value of the goods alleged to have been sold and delivered at the "instance and request" of the defendant. From this order of the County Court the defendant has appealed to this Court, upon the grounds set forth in his exceptions, which will be incorporated in the report of the case. *Page 286
The exceptions will not be considered separately, but as a whole, for the controlling question is, Was there any testimony before the Magistrate tending to establish an original undertaking on the part of the defendant to pay for the fertilizer alleged to have been "sold and delivered at his (defendant's) instance and request?" The answer to this question will determine whether the judgment should be affirmed or reversed.
The synopsis of the testimony contained in the transcript of record shows the proof on this point as follows: R.P. Dempsey on behalf of the plaintiff, on direct examination, according to the transcript, testified:
"That he is one of the members of the Henderson Dempsey partnership, and dealers in fertilizer; sold Henry McCally, a tenant of Mr. Skinner's, and after the sale of this fertilizer to Henry McCally, Mr. Skinner promised to sign the note, and said that he had instructed the tenantto buy fertilizer from Henderson Dempsey, and that he would sign the note if he would mail the note to him. For some reason did not mail the note to Mr. Skinner, but he went to him, and to see him about the account, and he asked us to wait until he could see McCally and see if he could not help him pay it; and the second time we went to him, Mr. Skinner said, `How about knocking off the interest of the note?' and I told him that I could not, and he said that he would not sign the note. This was the new note for 1927. He never at any time denied that he owed the account, and admitted that he owed this account." (Italics added.)
On cross examination the witness, Dempsey, further testified in part:
"Mr. Skinner said that he sent Henry McCally to get thisfertilizer, and that he owed" (evidently meaning that he,Skinner, owed for the fertilizer). (Italics added.) *Page 287
Dempsey further testified:
"We could not find Henry McCally the day that we had J.L. McCally to sign his note, and Mr. Skinner said for us to get Henry to sign his note and mail it back to him, and he would sign it. My recollection is that the fertilizer is charged to McCally on our books."
As far as the record discloses, all of the testimony of this witness was admitted without objection.
The witness, O.W. Henderson, testified:
"I am a partner of Mr. Dempsey; I went with Mr. Dempsey to get the note signed up; we could not find Henry McCally, and Mr. Skinner said for us to get Henry McCally to sign the note — (defendant objects to testimony that he would sign note on the ground that it is void under the Statute of Frauds, being collateral promise to answer for the debt of another; objection overruled) — and mail it to him, and he would sign it and mail it back to us. He did not deny that he owed it."
On cross examination the witness, O.W. Henderson, further testified:
"Mr. Skinner asked us to mail him the note and he would sign it and mail it back. I never had a conversation with Skinner prior to this. This account is charged on our books to Henry McCally and W.L. Skinner. (Page 88 of ledger offered in evidence. This page of the ledger shows the account of J.L. McCally and Henry McCally, dated 4-1-1926. The account of Henry McCally is charged to Henry McCally and written with pen and ink. Two lines above Henry McCally's name is the name of W.L. Skinner, Greer, No. 4, written in small hand with pencil.) I don't recall the date that I put Skinner's name on the book."
In the course of his testimony the defendant stated that he did not rent any land to Henry McCally, but he added:
"Henry McCally cultivated some land belonging to me in the year 1926 (which was the year the fertilizer was *Page 288 furnished by the plaintiffs), but he did not have any agreement with me to farm my land."
The defendant denied every material statement to which the plaintiffs testified that the defendant had made to them, and denied that he had anything to do with the fertilizer in question. Further on in the course of his testimony, on cross examination, the defendant stated:
"I knew that Henry McCally was going to tend a part of my land in the spring of the year. I did not get any rent from Henry McCally. I got some rent from J.L. McCally. I was looking to J.L. McCally for rent. I was indifferent as to the rent that Henry McCally was to pay. I was not looking to Henry McCally for my rent, and he was not working any land under my directions."
It is thus seen that the testimony on the part of the defendant is in conflict with that of the plaintiffs. From the testimony of the defendant, it might be inferred that Henry McCally, to whom the fertilizer in question was delivered, did not rent land direct from the defendant, but that the land which he cultivated was sublet to him by J.L. McCally, who bargained with the defendant for the land, though the defendant admits that he knew Henry McCally was to cultivate the land in question. But even if it be granted that Henry McCally did not rent the land direct from the defendant, and that it was sublet to him by J.L. McCally, a renter of the defendant, it does not by any means follow that the defendant is relieved of paying for the fertilizer if he sent to the plaintiffs for the fertilizer, and there was testimony introduced to the effect that the defendant did send to the plaintiffs for the fertilizer. R. P. Dempsey, one of the plaintiffs, without any objection, testified on this point as follows:
" * * * Sold Henry McCally, a tenant of Mr. Skinner's, and after the sale of this fertilizer to Henry McCally, Mr. Skinner promised to sign the note, and said thathe had instructed the tenant to buy fertilizer from Henderson *Page 289 and Dempsey and that he would sign the note if he would mail the note to him."
On cross examination the same witness testified on this point:
"Mr. Skinner said that he sent Henry McCally to get this fertilizer and that he owed (meaning he owed for it.)"
This testimony, if true, was sufficient to base a finding that the defendant sent Henry McCally to the plaintiffs for the fertilizer, and that there was, therefore, an original obligation on the part of the defendant to pay for the same. Whether this testimony was true was a question for the Magistrate, who tried the case without a jury, and is not a question for this Court. Under the well-recognized rule, this Court will not set aside a verdict rendered in a Magistrate Court on a question of fact, concurred in by the Circuit Judge or County Judge, if there was any evidence to support the finding. That there was evidence to support the finding of the Magistrate in the case at bar, which finding was concurred in by the County Judge, appears beyond question. Therefore, this Court should not reverse the judgment.
The contention is made that the fertilizer was charged to Henry McCally and that the note was not signed by the defendant. One of the plaintiffs, Dempsey, stated in the course of his testimony that the fertilizer, according to his recollection, was charged to Henry McCally, but the plaintiff, Henderson, testified that the account was charged on the books to Henry McCally and W.L. Skinner, the defendant. Under the rule, where there is conflicting testimony introduced by the plaintiff, the jury (in this case the Magistrate) is not required to accept that most unfavorable, but may accept that most favorable; that is, the jury are the judges of the facts; in this case, the Magistrate was the judges of the facts. Further, if the defendant sent for the fertilizer, it was not necessary that it be charged on the *Page 290 books to him in order to bind him to pay for same. Neither did the failure to sign the note relieve him from the obligation to pay for the fertilizer. When a person sends to a merchant for goods, he places himself under obligations to the merchant to pay for the goods, whether he executes a note for the same or not. While it is true "that a promise founded upon a past consideration cannot be enforced, unless it be shown to be supported by a new legal consideration, growing out of and connected with the original contract," and neither is a collateral promise to answer for the debt of another binding unless in writing; but these principles do not relieve the defendant from his obligation to pay for goods sold and delivered at his instance and request, and that there was ample evidence to support this alleged fact and the Magistrate's finding thereon clearly appears from the testimony printed in the transcript and pointed out herein.
I think the exceptions should be overruled, and the judgment affirmed.
MR. CHIEF JUSTICE WATTS concurs.