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Cup. III.
Sect. III.

When the sewer was nearly completed the board gave notice, under 11 & 12 Vict. c. 63, s. 69, to the occupiers of the adjoining houses to connect their drainage within twenty-one days, or the board would do it at their expense. Before the twenty-one days had expired the plaintiff, having completed the sewer, was about to leave the place with his carts, &c., when the defendant sent after him, and the following conversation took place. The defendant said: “What objection have you to making the connections ?” The plaintiff replied, “I have none, if you or the board will order the work, or become responsible for the payment.” The defendant replied, “ Go on and do the work, and I will see you paid.” The plaintiff accordingly did the work under the superintendence of the surveyor of the board, and sent in his account to the board, debiting them with the amount. The board refused to pay, on the ground that they had not authorized the order. The Court of Queen's Bench held that the conversation did not amount to an undertaking by the defendant to be primarily liable for the work, but only to a promise that if the plaintiff should do the work on the credit of the board, the defendant would pay, if the board did not, and that this was a promise to be answerable for the debt of another person, which, not being in writing, could not be enforced. The Court of Exchequer Chamber, however, held that there was evidence on which the jury might have found that the defendant agreed to be primarily liable, and this decision was affirmed by the House of Lords.(a)

It is very often the subject of inquiry at Nisi Prius to Question to whom the credit was given, and such nice distinctions given is for

the jury.

whom credit

(a) L. R. 7, H. L. 24.

Chap. III.
Sect. III.

have been taken on the wording of the promise, as to make it impossible to lay down any precise rule of construction, but the jury must determine to whom the credit was given.(a)

Where the plaintiff, who carried on the trade of a tailor, being applied to by one Foster to be supplied with certain clothes made by the plaintiff, and still in his possession, was unwilling, and refused to deliver them to Foster upon his credit, but delivered them at the special request of the defendant, who undertook and promised to pay, it was held that the case was not within the statute, that the whole credit was given to the defendant, and that he was liable.(b)

In Rains v. Story, (c) A applied to B for goods; B asked for a reference; A referred him to C; C on being applied to inquired the amount of the order and on what terms the goods were to be furnished, and, on being told, said: You may send them, and I'll take care they are paid for at the time." He was afterwards written to to accept a bill for the amount, to which he replied that he was not in the habit of accepting bills, but that the money would be paid when due. After this, B (the seller) wrote to C about the goods, and spoke of them in his letter as goods which C had “guaranteed,” and the attorney of B's assignees (when he had become bankrupt) wrote to A for the money; but this letter was a circular, written in pursuance of a list made out for him by B, and without any knowledge of the circumstances under which the debt was contracted. It was held that on this evidence C was


(a) 1 Wms. Saund. 230, see Anderson v. Ilayman, 1 H. BI. 120.

(1) Croft v. Smallwood, 1

Esp. 121 ; and see Keate
Temple, 1 B. & P. 158.

(C) 3 C. & P. 130.

not primarily liable, but only as a guarantor of the debt

Sect. III.

of A.(a)

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The tradesmen's books should be produced in order to Evidence as to show to whom credit was given. In Austen v. Baker (b) given. Holt, C.J., said that if B desire A to deliver goods to C, and promise to see him paid, there assumpsit lies against B; though, in that case, he said, at Guildhall he always required the tradesman to produce his books, to see whom credit was given to. But if, after goods delivered to C by A, B says to A, “You shall be paid for the goods," it will be hard to saddle him with the debt. And in Storr v. Scott(e) it was held that when a tradesman makes out an account for goods in the name of a particular person, it must be taken that they were furnished on the credit of such person, unless it can be shown by unequivocal evidence that the credit was in fact given to another. In order to bring a case within the statute, it must be Must be

principal shown that the parties to the transaction intended that debtor. there should be a principal debtor, either at the time the promise was made or at some future time. The leading case upon this point is Birkmyr v. Darnell.(d) There the declaration stated as follows: That in consideration the plaintiff would deliver his gelding to A, the defendant promised that A should re-deliver him safe, and evidence was given that the defendant undertook that A should re-deliver him safe; and this was held a collateral undertaking for another, for where the undertaker comes

(a) See also Darnell v. Tratt, 20. & P. 82 ; Simpson v. Pentou, 2 C. & M. 430; Andrews 1. Smith, 2 C. M. & R. 627;

Cross v. Williams, 7 H. & N.

(b) 12 Mod. 250.
(c) 6 C. & P. 241,
(d) 1 Salk, 27.

Sect. III.

in aid only to procure a credit to the party, in that case there is a remedy against both, and both are answerable according to their distinct engagements; but where the whole credit is given to the undertaker, so that the other party is but as his servant, and there is no remedy against him, this is not a collateral undertaking. But it is otherwise in the principal case, for the plaintiff may maintain detinue upon the bailment against the original hirer, , as well as assumpsit upon the promise against this defendant. Et per cur. “If two come to a shop, and one buys, and the other, to give him credit, promises the seller, 'If he does not pay you, I will,' this is a collateral undertaking, and void, without writing, by the statute. But if he says, 'Let him have the goods, I will be your paymaster,' or, 'I will see you paid, this is an undertaking as for himself, and he shall be intended to be the very buyer and the other to act but as his servant.” (a) The case of Watkins v. Vince (b) is to the same effect. There it was said that if A promises B (being a surgeon) that if B will cure D of a wound, he will see him paid, this is only a promise to pay if D does not, and it ought, therefore, to be in writing by the statute. But if A promise in such case that he will be B’s paymaster, whatever he shall deserve, it is immediately the debt of A, and he is liable without writing. (c)

A promise by a third party to pay a broker put in possession of goods on which a distress for rent has been levied his charges, must be in writing, as the landlord

Promise to pay broker.

(a) And see the judgment
given at greater length, Ld.
Raym. 1087.

(6) Ld, Raym. 224.
(c) And see Seaman v. Price,

1 C. & P. 586, 10 Moo. 34 ; Turner v. Phillips, 1 Rol. Abr. 20, pl. 14, and the judgment of Willes, J., in Mountstephen v. Lakeman, L, R.. 7 Q. B. 196.

Chap. III,
Sect. III.

who has authorized the distress is liable for the

necessary expenses.(a) A promise in writing to pay a debt to be transferred to pay a

debt to be from the promiser's account to that of a third party (his transferred. agent) is valid, as a guarantee. (b) Where, in an action against the sheriff for taking the Promise by

execution plaintiff's goods in a fieri facias against a third party, the creditor. sheriff failed on the trial, and the execution creditor then employed an attorney to apply for a new trial, and on obtaining a rule for a new trial, to act as attorney on the second trial, it was held that the attorney might recover his bill against the execution creditor, although there was no memorandum in writing, as the execution creditor was the person primarily liable to him ; but if the attorney had, in the first instance, been employed by the sheriff, it would be otherwise. (c) A and Co. bought certain wools of B and Co., pay- Promise in

consideration able by bearers, acceptance at eight months; but before of percentage. the sale was completed B and Co., requiring some security, in consideration of £1 per cent. obtained the following instrument from C., signed by him :"Gentlemen,-In consideration of £1 per cent., I hereby guarantee the due and correct payment of one half the amount of 136 bales of wool sold to Messrs. A and Co., as per contract ;”-it was held that the instrument was a guarantee.(d)

If the defendant contracts, not to pay A's debt out of Promise to his own funds, but only faithfully to apply A's funds for the funds of that purpose, when they shall come to his hands, that


(a) Colman v. Eyles, 2 Stark, 62.

(6) Brunton v. Dullens, 1 F. & F. 450.

(c) Noel v. Hart, 8 C. & P. 230.

(d) In re Willis, 4 Exch. 530.

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