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Sect. III.

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Chap. III. accordingly wrote to the plaintiff the following letter:

“Mr. Hayman, of this town, says his son will call on you and leave orders, and he has promised me to see you paid, if it amounts to £1000. N.B.-If deal for twelve months' credit, and pay in six or

in six or eight months, expects discount in proportion.” Soon after, the son received goods from the plaintiff to the amount of £800, which were delivered to him, in consequence of the before-mentioned engagement of the father. The son was debited in the plaintiff's books, and, having been applied to for payment, wrote the following answer to the plaintiff:-" In answer to your letter, I can only say that I understand your credit for the goods was twelve months, which was also mentioned by your rider to my father. I shall, at this rate, make you remittances for the different parcels as they become due.The son afterwards became a bankrupt, and this action was brought against the father to recover the value of the goods. Heath, J., directed the jury to consider whether the plaintiff gave credit to the defendant alone, or to him together with his son ; that in the former case they should find a verdict for the plaintiff'; in the latter, for the defendant: being of opinion that if any credit was given to the son, the promise of the defendant, not being in writing, was void by the statute. verdict was found for the defendant, and a rule obtained to set it aside, which the Court afterwards discharged, being clearly of opinion that this promise, not being in writing, was void by the statute, as it appeared from the letter of Hayman the son that credit was given to him as well as to the defendant.

Where A, having commenced certain business for B, which he had undertaken, refused to proceed without a promise from C to pay the further expenses, it was held

a

Sect. III.

must not be

that C was not liable on such a promise without a note CHAP. III. in writing.(a) So, where the defendant verbally promised the plaintiff that if he would supply goods to A, drawing upon him at one month, and would allow him (the defendant) three per cent. upon the amount of the invoice he would pay the plaintiff cash to take A's bill "without recourse,” in other words, buy the bill of him, it was held that there was a contract to answer for the debt or default of another which, not being in writing, could not be enforced. (6)

The statute does not apply to a case where the party Guarantor giving the guarantee is himself liable to the demand liable. which he is purporting to guarantee, it must be exclusively the debt, default, or miscarriage of another person. In Ardern v. Rowney (c) a cheque for £100 was drawn upon the defendant, and the plaintiff, who was asked to cash it, sent to the defendant to know whether it was good. The defendant replied that it would be honoured, as he was indebted to the drawer of it in £200. The cheque was void, as being post-dated; but it was held, nevertheless, that the plaintiff could recover, on the ground of the sum due to the drawer being appropriated. Lord Ellenborough said: “If this had been an agreement to pay an amount of any money which the plaintiff might advance to Alder (the drawer), and no specific sum of money had been mentioned, which was to be so advanced, I should have thought this a case within the Statute of Frauds; but it appears to me that this is an appropriation of £100, part of the money which the defendant said

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(a) Barker v. Fox, 1 Stark, 270.

(b) Mallett v. Bateman, L. R.

1 O. P. 163, affg. S. C. 16 C.B.
(N. S. 530.

(c) 5 Esp. 254.

Chap. III.
Sect. III.

Credit given to guarantor promise not within the statute.

he owed to Alder, amounting to £200, and that the plaintiff may recover.”

Where the testator appointed his son, Alfred Orrell, and three other persons his executors and trustees, and Alfred Orrell disclaimed and renounced probate, and afterwards purchased a portion of the testator's estate, the other legatees raised a claim for losses incurred by the trustees, and Alfred Orrell's solicitor wrote, on his behalf, to the claimants, agreeing to pay £3000 in satisfaction of the alleged losses, it was held that this letter was not within the statute, as an agreement to answer for the debt, default, or miscarriage of another, as Alfred Orrell was himself liable for the debt. (a)

If it appears that goods were supplied to, or that work was done for, a third person at the instance of the guarantor, and that credit was given to him and he was treated as the real debtor, then the promise is direct, and not collateral, and the case is not within the statute. Where the promise was as follows: "If L S shall go through the purchase my brother will give you a handsome gratuity for the trouble and pains you shall be at in transacting the affair, which I promise and assure you shall not be less than £300. My meaning is, you shall be paid when the conveyances shall be executed;" it was held that the defendant was personally liable, and Lee, C. J., said that there was a difference between a conditional and an absolute undertaking, as if A promiso to pay

B such a sum if C does not: there A is but a security for C. But if A promise that C will pay such a sum,

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(a) Orrell v. Coppock, 26 L. 3 B. & C. 842; Batson v. King, J. Ch. 269; and see Coutourier 4 H. & N. 739; Fitzgerald v. v. Hastie, 22 L. J. Ex. 97; Hodg. Dressler, 7 C. B. (N. S.) 374. son V. Anderson, 5 D. & R. 735 ;

CHAP. III.
Sect. III.

A is the principal debtor, for the act done was on his credit, and no way on C. (a) Where a mother took her son to school, and saw the master, but no evidence was given of what passed at the time, and afterwards a bill was delivered to the boy's uncle, who said it was quite right to deliver the bill to him for he was answerable, it was held that the Statute of Frauds did not apply, and that it was proper to leave it to the jury to say under the circumstances whether the original credit was given to the uncle or not.(b) Where the defendant gavo the following guarantee:" I hereby undertake to Mr. T. Edge to see him paid for the gas apparatus he has put up and furnished for Mr. J. Brunton according to the work, to be performed in a scientific manner, as shall be thought necessary and approved by Mr. Evans, the superintendent of the gas works in Peter Street," and the defendant had given orders about the work before and after the guarantee was given, Abbott, C. J., left it to the jury to determine whether the defendant, although he had no interest in the theatre in which the apparatus was to be put up at the period in question, was not one of the persons who had originally given orders for the gas apparatus ; for if he was, a verdict might be recovered upon his own personal liability, without regard to the guarantee.(c)

Where the defendant employed a builder to erect some houses, and gave a guarantee for a supply of materials to the builder to a certain amount, and afterwards an order

(a) Gordon v. Martin, Fitzg. 302.

(6) Darnell v. Tratt, 2 C. &

243; and see Scholes v. Hamp-
80n, cited De Colyar on Guaran.
tees, 94; Fell on Guarantees,
2nd ed. 27.

P. 82.

(c) Edge v. Frost, 4 D. & R.

H

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CHAP. III.
Sect. III.

for a further supply to a certain amount, and more materials were supplied on the order of the builder, the defendant being constantly on the premises, it was held that it was for the jury to say whether he had so acted as to lead the plaintiff to believe that the latter supply was to be on his credit. (a)

In Simpson v. Penton, (6) one Simpson introduced Penton to Ovenston, an upholsterer, and in Penton's presence asked Ovenston if he had any objection to supply Penton with some furniture, and that if he would "he would be answerable. Ovenston asked Simpson how long credit he wanted, and Simpson replied “ he would see it paid at the end of six months.” Ovenston agreed to this, and Simpson gave him the order; and the goods were supplied accordingly. At the end of six months, Penton not having paid the amount, Ovenston applied to Simpson for payment, and he paid the money.

The entry in Ovenston's books was: “Mr. Penton per Mr. Simpson.” It was held that the jury were warranted in finding that the undertaking on the part of Simpson was not a collateral undertaking. (c)

In the recent case of Mountstephen v. Lakeman, (d) the question as to whether credit was given to the guarantor personally was fully discussed. There the plaintiff had been employed to construct a main sewer by a local Board of Health, of which the defendant was chairman.

(a) Smith v. Rudhall, 3 Fos. Hatfield, 2 Bing. 439; 10 Moo. & Fin. 143 ; see also Taylor v. 42; Clancy v. Piggott, 2 A. & Hilary, 1 C. M. & R. 741. E. 473; Hargreaves v. Parsons, (6) 2 C. & M. 430.

13 M. & W. 561. (c) And see Austen v. Baker, (d) L. R. 7 Q. B. 196, affd. 12 Mod. 250; Bateman v. Phil. L. R. 7 H. L. 24. lips, 15 East. 272; Dixon v.

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