The opinion of the Court was delivered by
Willard, A. J.Under the authority of the ruling in Taylor vs. Drake, (4 Strob., 431,) it is clear that the Circuit Judge should have granted the defendant’s motion for a non-suit. The contract on which the action was brought, as disclosed by both the pleadings and evidence, was a collateral contract to answer for the debt of another, and, as such, must be in writing, to be capable of enforcement under the statute of frauds. It appeared, by the plaintiff’s evidence, direct and uncontradicted, that the goods were sold to Gayle upon the promise of defendants to accept a draft drawn for the purpose of paying the purchase money'on such sale. As the case stood at the time the motion for a non-suit was made, and that aspect is unchanged, there was no evidence that could justify a jury in finding the contract of sale, as it regards the goods, as a contract *105between the plaintiffs, as sellers, and the defendants, as purchasers. On the contrary, the transaction, regarded as one of purchase and sale, was between the plaintiffs and Gayle. The promise of the defendants was both inducement and consideration to such contract of sale, and was, in substance, a contract to assure the performance of what Gayle had undertaken to do, namely, to pay for the goods purchased.
The point ruled in Taylor vs. Drake, (4 Strob., 431,) was, that if the person to whom the goods were delivered is liable as purchaser, then a promise made by a third person to pay the amount of such purchase must be regarded as collateral, and, as such, must be in writing, in conformity with the Statute of Frauds, in order to be capable of being enforced.
The promise of defendants here was to accept for the amount of such purchase. Such a promise was, in substance, a promise to pay for the goods sold to Gayle, and for which the latter was primarily liable. The only consideration for defendants’ promise was the credit given to Gayle, and this shows that the contract to accept was intended as a means of securing payment for the goods sold and delivered to Gayle.
In Taylor vs. Drake the promise was to pay or endorse. Here the promise was to accept; and on the same ground on which, in that case, the contract was held to be collateral to an original contract of sale, the present promise must receive the same construction.
In Taylor vs. Drake a non-suit was entered by the appellate Court after a verdict for the plaintiff, thus showing that on a clear and uncontradicted state of evidence the Court will undertake to say, without the aid of the jury, whether the contract is to be regarded as original or collateral. As there was no question of credibility or of contradictory testimony to be settled, and no inference of fact to be drawn presumptively, there was nothing to put in exercise the peculiar functions of a jury. The decision of that ease leads to the conclusion that the present verdict must be set aside, and the case remanded for judgment, dismissing the complaint.
Moses, C. J., and Wright, A. J., concurred.