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person who

Davies, (a) it was held that a guarantee to secure moneys Chap. III.

Sect. III. to be advanced to a third party on discount to a certain extent" for the space of twelve calendar months,” might be countermanded within that time.

Acceptance of an offer to guarantee may be implied Implied from the action of the parties. Where a guarantee was

acceptance. given in the following terms: “I hereby guarantee to you the sum of £250 in case Mr.P should make default in the capacity of agent and traveller to you;" it was held that the person indemnified was not bound to employ the person designated by the guarantee, but that if he did employ him, the guarantee attached and became binding on the

gave it.(6) The terms of the offer may, however, show that an ex- Express

acceptance. press acceptance is expected, and then the guarantee is not conclusive unless it has been expressly accepted. Thus, where the defendant wrote as follows: "F informs me that you are about publishing an arithmetic for him. I have no objection to being answerable as far as £50. For my reference apply to B of this place;" the memorandum was witnessed by B, and forwarded by him to the plaintiffs, who never communicated their acceptance to the defendant; the Court decided that the plaintiffs not proving any notice of acceptance to the defendant, were not entitled to recover, as the transaction “could not be tortured into a consummate and perfect contract.”(c) Where a surety is required to give, and gives, Waiver of

references. (@) 12 C. B. (N. S.) 748 ; C. B. (N. S.) 748, and the judg. and see Grant v. Campbell, 6 ment of Coleridge, J., in Pope Dow. H. L. C. 239.

v. Andrews, 9 C. & P. 564. (6) Kennaway v. Treleavan, (©) Mozloy v. Tinkler, 1 C. 5 M. & W. 498, per Parke, B., M. & R. 692, 5 Tyr. 416. and see Offord v. Davies, 12

Sect. III.

continue.

Chap. III. references, the creditor may dispense with them, as the

condition is for his benefit, but he cannot enforce the guarantee against the surety until he has given him notice of the intended waiver.(a)

“The question whether each particular case comes Original debtor's lia- within this clause of the statute or not, depends, not on the bility must

consideration for the promise, but on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defendant or his property, except such as arises from his express promise."(6) In Green v. Cresswell,(c) Denman, C. J., said that there did not appear to be any objection to the above test, and it was also approved of by Cockburn, C. J., in Fitzgerald v. Dresler.(d) There the plaintiffs through D and Co., who were brokers, sold 682 bags of linseed at a certain price per quarter to H, and H afterwards, through the same brokers, sold the linseed at an increased price to the defendant. The time for the defendant's payment of the purchase money was to arrive before the time fixed for H's payment. The defendant being in want of the linseed to complete a contract he had made, sent one of his clerks to D and Co. for the delivery order, with instructions to follow up the matter and get the order. The clerk was taken by D and Co. to the plaintiffs, from whom he obtained the order only on his promising that the defendant would pay the plaintiffs for the seed, as the plaintiffs required to be paid before they parted with the order. On the following

(a) Morten v. Marshall, 2 H. & C. 305.

(b) 1 Wms. Saund. 233.

(c) 10 A. & E. 453 ; 2 P. & D. 430.

(d) 7 C. B. (N. S.) 392; 29 L. J. C. P. 118.

CHAP. III.
Sect. III.

day the defendant sent a cheque to D and Co. for £900 on account of the seed, which had not been measured at that time, so that the precise quantity of it was not then known. Upon its being measured it was found that the plaintiffs were entitled under their contract with H to receive £971 158. 6d. In an action by them against the defendant to recover the difference between this amount and £900, the amount of the cheque, it was ruled that the contract made by the defendant's clerk was not a contract to pay the debt of a third person within the statute, as the linseed, the giving up of which by the plaintiffs was the consideration for such promise, was the property of the defendant subject to the plaintiffs' lien for the purchase money.

The statute only contemplates a promise made to the Promise person to whom another is already, or is to become, lia- must be to ble: therefore a promise by the defendant to the plain- guaranteed. tiff to pay A B a debt due from the plaintiff to A B, is not within the statute.(a) It must be a promise to be answerable for a debt of or a default in some duty by that other person towards the promisee. (b)

Where A, at the request of B, entered into a bond with him and C to indemnify D against certain debts due from C to D, and B promised to save A harmless from all loss by reason of the bond, it was held that the promise was binding, although not in writing. “If the plaintiff,” said Parke, J., “at the request of the defendant had paid money to a third person, a promise to repay it need

person

(a) Eastwood v. Kenyon, 11 A. & E. 438; 2 P. & D. 376 ; see observations on this case, Sm. Merch. Law, 8th ed. 457;

and see also Gregory v. Williams,
3 Mer. 582.

(6) Hargreaves v. Parsons, 13
M. & W. 561, per Parke, B.

CHAP. III.
Sect. III.

not have been in writing, and this case is in substance the same."(a)

Again, where the defendant and Parker agreed for the sale by Parker to the defendant of the “put” or “call” of fifty foreign railway shares, at a certain price per share premium, at any time on or before the 18th of February, 1844, and before that day the defendant agreed to re-sell the option to the plaintiff and to guarantee the performance of the agreement by Parker, and on the 16th of February the plaintiff “called” the shares (i.e. required the delivery of them pursuant to the agreement), but it was, at the same time, verbally agreed between him and the defendant and Parker that they should be delivered to the plaintiff not on the 18th of February but on the 2nd of March, at Paris; it was held that this was not an agreement by the defendant to be answerable for the default of Parker, but an original promise by him for the delivery of the shares by Parker, for which a note in writing was not required by the statute, Parke, B., saying, “In this case Parker had not contracted with the plaintiff, nor was it intended that he should ; there was no privity between them; the non-performance of Parker's contract with the defendant would be no default towards the plaintiff, and, consequently, the undertaking by the defendant was no promise to answer for the default or miscarriage of Parker in any debt or duty towards the plaintiff. It was an original promise that a certain thing should be done by a third person.” (b)

So where the plaintiff, the bailiff of a county court, being about to arrest one H under a warrant of contempt

8 B. &

(a) Thomas v. C C. 728.

(6) Hargreaves v. Parsons, 13 M. & W. 561,

CHAP. III.
Sect. III.

for non-payment of a judgment debt, the defendant, in consideration that he would forbear to execute the warrant, promised to pay the plaintiff £17 on a given day or surrender H, it was held that this was not an agreement by the defendant to be answerable for the debt or default of H, but an original promise by him to pay the money or surrender H.(a)

Formerly a distinction was made between promises to If promisee pay for goods sold, made before delivery of the goods, promise must and promises made after the goods were delivered. In be in writing. the former case the undertaking was considered original, and not within the statute; in the latter, collateral, and within the statute. (b) But this distinction has been overruled,(c) and the rule now is, that if the person to whom the goods are supplied is liable at all, the promise must be in writing. (d) In Anderson v. Hayman,(e) the plaintiff, a woollen draper in London, employed a rider to receive orders from his customers in the country. The defendant, meeting with the rider at Deal, desired him to write to the plaintiff to request him to supply the defendant's son (who traded in the West Indies) with whatever goods he might want, on his (the defendant's) credit; and at the same time said, “Use my son well; charge him as low as possible, and I will be bound for the payment of the money as far as £800 or £1000.The rider

(a) Reader v. Kingham, 13 C. (c) Matson v. Wharam, 2 T.
B. (N.S.) 344 ; and see Hodgson R. 80.
V. Anderson, 3 B. & C. 842; 5 (d) Matson v. Wharam, 2 T.
D. & R. 735,

R. 80; Colman v. Eyles, 2
(6) Mawbrey v. Cunningham, Stark, 62 ; Peckham v. Faria, 3
cited 2 T. R. 80; Jones V. Doug. 13; Parsons v. Walter,
Cooper, Cowp. 227; Lofft. ib. 14, n. (c).
769.

(e) 1 H. Bl. 120.

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