121 S.E. 659

TAYLOR et al.
v.
LEE et al.

No. 229.
Supreme Court of North Carolina.
March 12, 1924.

Appeal from Superior Court of Duplin County; Grady, Judge.

Action by L. Taylor and another, trading as L. Taylor & Son, against H. F. Lee and another. Judgment for plaintiffs, and defendant named appeals. No error.

Civil action tried upon the following issues:

"(1) Did the defendant H. F. Lee promise and agree to become bound to the plaintiffs for supplies furnished to B. D. Parker, during the year 1920, as alleged in the complaint? A. Yes.

"(2) If so, in what amount is the defendant Lee indebted to the plaintiffs by reason of said contract? A. $1,552.60 and interest.

"(3) In what amount is the defendant Parker indebted to the plaintiffs for supplies furnished him during the year 1920? A. $1,552.60 and interest."

From a judgment of $1,552.60, rendered jointly and severally against the two defendants, the defendant H. F. Lee appeals.

Stevens, Beasley & Stevens, of Warsaw, for appellant.

Langston, Allen & Taylor, of Goldsboro, and R. D. Johnson, of Warsaw, for appellees.

STACY, J. Appellant's chief exception, as stressed on the argument and in his brief, is the one addressed to the refusal of the court to grant his motion for judgment as of nonsuit, made first at the close of plaintiffs' evidence and renewed at the close of all the evidence, and based upon the ground that appellant's special promise to plaintiff, which was not in writing, was to answer for the debt, default, or miscarriage of his co-defendant Parker, and was therefore void under the statute of frauds. C. S. § 987.

It was in evidence that the defendants Lee and Parker, landlord and tenant, respectively, went to the plaintiffs' store and made arrangements with them whereby the [121 S.E. 660] plaintiffs were to furnish the defendant Tarker with certain supplies during the year 1920. Plaintiffs understood that Lee was to be responsible for whatever Parker bought. He said to the plaintiffs: "Mr. Parker will be on our land this year, and you sell him anything he wants, and I will see it paid." Almost this identical language was held in Whitehurst v. Padgett, 157 N.C. 424, 73 S.E. 240, to be sufficient to warrant a finding that the promise was an original one and not within the statute of frauds, if made at the time or before the debt was created, upon sufficient consideration, and credit was given thereon solely to the promisor or to both promisors as principals, or if the promise were based upon a new consideration of benefit or harm passing between the promisor and the creditor, or if the promise were for the benefit of the promisor and he had a personal, immediate, and pecuniary interest in the transaction in which a third party was the original obligor. See Peele v. Powell, 156 N.C. 553, 73 S.E. 234, and cases there cited.

In the instant case, there was no exception to the charge, and we think the case was properly submitted to the jury. The verdict as rendered was warranted by the evidence.

No error.