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Cuap. III. contract will not be within the operation of the statute. Sect. III.
Thus, where the defendant promised the plaintiff, in consideration that he would deliver such materials as Hill (a workman employed to do certain work) should require, that he would pay him for them out of such moneys received by him as should become due to Hill; the promise was considered to be original and not within the statute.(a)
In Dixon v. Hatfield,(6) Wundertook to complete the carpenter's work in H's house and find all the materials: W, being delayed for want of credit or funds to procure timber, it was supplied by M, on H's signing the following guarantee: “I agree to pay M for timber to house in A C out of the money that I have to pay W, provided W's work is completed ;” and it was held that this was not a guarantee to pay if W should fail, but a direct undertaking to pay when the work should be completed. So where the defendants promised the plaintiffs, that, if they would deliver goods to a value named to A, which goods were requirod for the building of a church, and were to be paid for by a bill of exchange to be drawn by the plaintiffs on A, the said bill should be paid at maturity out of money to be received from the church ;
it was held that the promise was within the statute.(e) Parting with Where tho plaintiff holds securities for a debt, or has
y, or giving up lien. a lien upon the goods of the debtor, and is induced by
the promise of the defendant to part with his securities or to give up his lien, such promise amounts merely to a salo of the security or lien, and is therefore not within the
(a) Andrews v. Smith, 2 C.
(b) 2 Bing, 439, 10 Moo. 42.
Bing. 107; and see Sweeting r. Asplin, 7 M. & W. 165; Gerish v. Chartier, 1 C. B. 13; Walker v. Rostron, 9 M. & W. 411.
statute.(a) Where the plaintiff, a broker, had a lien on
due them for the principal; it was held that this promise was not within the statute.(b)
So where A being insolvent, a verbal agreement was entered into between several of his creditors, whereby B agreed to pay the creditors 108. in the pound, in satisfaction of their debts, which they agreed to accept and to assign their debt to B; it was held that this agreement was not within the statute, as it was not a collateral promise to pay the debt of another, but an original contract to purchase the debts.(c) But where W D by indenture agreed to grant a certain composition deed to all the creditors of J D who should before a fixed day executo a release of their debts, and each creditor on executing the release received the joint note of J Dand W D; it was held the agreement was one which must be in writing, and that any variation in its terms must have been evidenced in writing. (d)
Where a written agreement, signed by the defendants, the plaintiffs, and the charterers, after reciting that the ship had arrived in port, and a stop had been put on the freight by the owners, and that a difficulty had arisen as
(©) Houlditch v. Milne, 3 Hyndman, 3 Ir. L. R. 109; Esp. 86.
Macrory v. Scott, 5 Ex. 907; (6) Castling v, Aubert, 2 East, Fitzgerald v. Dressler, 7 C. B. 325,
(N. S.) 395; 29 L. J. (C. P.) 119. (c) Anstey v. Marden, 1 Bos. (d) Emmet v. Dewhurst, 3 & P. (N. R.) 124; Barrett v. Mac. & G. 587.
Refraining from distress.
to the settlement of the charterers' accounts, stated that the stop was to be immediately taken off, and that the commission on the charter-party, payable to the plaintiff, was to be paid by the defendants, and that no person signing that agreement was to put any stop on the freight; it was held that this was an agreement to be answerable for the debt of another. (a)
A promise made by a third person to a landlord to pay rent in arrear, in consideration of the landlord's refraining from distress, is an original and not a collateral promise, and need not be in writing, and this whether the goods have been actually distrained upon or not. The leading case upon this point is Williams v. Leper.(b) There one Taylor was indebted to the plaintiff Williams in £45 for three-quarters of a year's rent, and Taylor becoming insolvent, made a bill of sale to the defendant Leper of all his goods in the house, to be sold for the use of his creditors. While the defendant was in possession of the goods upon the premises, the plaintiff came there to distrain for his rent, whereupon the defendant, in consideration that he would not distrain, promised to pay the £45. It was held that this was not a promise to pay the debt of another, that the goods were debtor, (c) and the defendant was in the nature of a bailiff for the landlord, and that if the defendant had sold the goods and received money for them, an action for money
(a) Gull v. Lindsay, 4 Ex, 45, 18 L. J. Ex. 354 ; and see Clancy v. Piggott, 2 A. & E. 473.
(b) 3 Burr. 1887; 2 Wils. 308.
(c) “It is submitted that this
is the true ground of the deci. sion, and that if the defendant had not been the owner of the goods, the promise must have been in writing.”—Forth v. Stanton, 1 Wms. Saund. 211 d.
had and received for the plaintiffs' use would have been laid. And Aston, J., said that the defendant was not bound to pay the landlord more than the goods sold for, in case they had not sold for £45.
So where the plaintiff, having distrained for rent upon the tenant's goods, agreed with the defendants to deliver up the goods, and to permit them to be sold by one of the defendants for the tenant, upon the defendants first undertaking to pay to the plaintiff all such rent as should appear to be due to him from the tenant, it was held that the undertaking was not within the statute.(a) Again, where an auctioneer employed to sell goods on certain premises for which rent was in arrears, was applied to by the landlord for the rent, the landlord saying it was better to apply so than to distrain ; and the auctioneer answered, “yon shall be paid ; my clerk shall bring you the money;" it was held that an action lay on this promise without a note in writing (6)
Where J A made a bill of sale of goods to the plaintiff in consideration of a debt of £129 198. due from him to the plaintiff, and the plaintiff being about to sell the goods in satisfaction of his debt, the defendant undertook to pay him £129 198. if he would forbear to sell, it was held that this promise was not within the statute, and Mansfield, C.J., said: “ What is this but the case of a man who, having the absolute, uncontrolled power of selling goods, refrains from the request of another ?" (c)
(a) Edwards v. Kelly, 6 M. & Sel. 204 ; Love's case, Salk. 28.
(b) Bampton v. Paulin, 4 Bing. 264.
(c) Barrell v. Tsussell, 4 Taunt. 117; and see Meredith v. Short, Salk. 25; Walker v. Taylor, 6 C. & P. 752; Barker v. Birt, 10 M. & W. 61.
In Thomas v. Williams,(a) Lord Tenterden, C.J., said, “ In Williams v. Leper there was no actual distress, but there was a power of immediate distress, and an intention to enforce it; and I think the judges must be understood to have considered that power as equivalent to an actual distress."
A promise to pay the sum due for rent out of the proceeds of a sale of the tenant's effects is a positive engagement to pay, if the goods are sufficient, and is not within the statute.(b)
In certain cases the promise may, in fact, be original, although made respecting the debt or default of another. Thus, where H, who was the agent for the plaintiff
, being desirous of retiring, the defendant applied for the agency. I was indebted to the plaintiff, and also claimed a commission for introducing customers. It was agreed that the plaintiff should allow H £52 on that account, and that the defendant, on taking the agency, should allow the plaintiff to retain six months' salary, which amounted to £52. In an action by the plaintiff for money had and received by the defendant as such agent, the defendant pleaded a set-off for six months' salary; it was held that this was not an undertaking to answer for the debt of another within the statute.(c)
The statute, it is now clearly settled, applies to guarantees against the tortious default or miscarriage of another person, as well as to guarantees against breaches of contract.(d) It appears that at one time a distinction was made between cases where the debtor was chargeable
Statute applies to promises to answer for tortious acts.
(a) 10 B. & C. 664.
(6) Stephens v. Pell, 2 Cr, & M. 710.
(c) Walker v. Hill, 5 H. & N. 419.
(d) 1 Wms. Saund, 231; Add. 151.