Greenville Ice & Coal Co. v. Venters

134 S.E. 927, 192 N.C. 811, 1926 N.C. LEXIS 424

• Court: Supreme Court of North Carolina
• Decided: September 29, 1926
• Status: Published

Opinion

Per Curiam.

Tbe only question of law presented is whether or not tbe debt was tbe original obligation of tbe defendant or whether be was secondarily liable tbereon.

The only exception in the record is to an excerpt from tbe charge of the trial judge as follows: “Ordinarily, when you become responsible for another’s debt, the contract must be in writing, but, if tbe promise is made before tbe goods, in this instance coal, is supplied, it need not be in writing.”

Tbe next paragraph in tbe judge’s charge is as follows: “So, if you find by the greater weight of tbe evidence, tbe burden being on the plaintiff, by tbe greater weight of the evidence, that tbe defendant promised and agreed to pay for such coal as plaintiff furnished to tbe railroad company, your answer to the first issue would be yes.”

It is too well established to require a citation of authorities that the charge of tbe court must be construed as a whole and in its entirety. Tbe statute of frauds does not apply to an original obligation of the promissor. Novelty Co. v. Andrews, 188 N. C., 59; Jenkins v. Holley, 140 N. C., 379; Peele v. Powell, 156 N. C., 553.

Tbe trial judge properly left with tbe jury tbe determination of tbe question as to whether tbe defendant expressly promised to pay the debt in litigation. Tbe jury has determined that issue in favor of the plaintiff.

No error.