The ruling of the court upon the second point on which instructions were asked was correct. The facts on which the defendants relied to show that credit was given to Hoar, though they were entitled to much consideration as evidence, were not conclusive. Entries by the plaintiff in his own books were not a contract, but memoranda, which were open to explanation. Even the bringing a suit against Hoar might be shown to have occurred by mistake. Gardiner v. Hopkins, 5 Wend. 23. Keate v. Temple, 1 B. & P. 158. Banfleld v. Whipple, 10 Allen, 27.
But on the other point we think the defendants have some ground for exception. If the contract of the defendants was a collateral and not an original promise, then, being a promise to pay the debt of another, and not in writing, the statute of frauds was a good defence. And the jury were rightly instructed that, if they found that the defendants were guarantors only, they should find a verdict for them. But the learned judge added, and we fear from inadvertence, because it fails to state the whol s rule of law applicable to the ;ose, “ that the defendants *138would be guarantors only, if at the time said articles were delivered to Hoar the plaintiff gave credit to Hoar alone.” The instruction should have been that the defendants would be only guarantors, unless, when the meats were delivered, the plaintiff gave credit to them, alone. It seems to be well settled by the. authorities that where goods are delivered to one person, and another, not a joint contractor with him, promises to pay for them, if any credit is given to the former, the promise of the latter is collateral, and within the statute of frauds. Browne on St. of Frauds, § 197, and cases there cited. Chancellor Kent states the rule thus: “ If the whole credit be not given to the person who comes in to answer for another, his undertaking is collateral, and must be in writing.” 3 Kent Com. (6th ed.) 123. In Cahill v. Bigelow, 18 Pick. 369, Chief Justice Shaw announces the same doctrine : “ The test is this, when the promise is made before the credit is given, to decide whether one promising is an original debtor or a guarantor, namely, whether credit was given to the person receiving the goods. If it was, then such promisor is a guarantor only, undertaking to pay another’s debt; if no credit was given to the person receiving the goods, then the promisor is himself debtor for goods sold to him and delivered to another person, by his order.”
The statement of the learned judge was certainly true, that if the credit was given to Hoar only, the defendants were only guarantors. But he did not inform the jury that the defendants might be guarantors also in case any credit was given to Hoar, although the plaintiff gave credit in part to their guaranty beside. As the latter hypothesis was that which the defendants were attempting to support, and upon which they had asked instructions, we fear that the jury may have been misled by the omission. It might well be, and there was some evidence tending to show, that the plaintiff delivered the articles to Hoar, relying both upon his responsibility and the promise of the defendants. In that case, the defendants’ promise was collateral As no instructions were given adapted to that state of facts, though asked by the defendants, there must be a new trial.
Exceptions sustained.