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And the following guarantees have been held to be limited to a single supply of goods, and not to be continuing or standing guarantees :
“ I hereby agree to be answerable to Mr. Kay for the amount of five sacks of flour, to be delivered to Mr. W. Taylor, payable in one month"(n).
“I hereby agree to be answerable for the payment of 501., for T. Lerigo, in case T. Lerigo does not pay for the gin, &c., which he receives from you, and I will pay the amount" ().
“I engage to guarantee the payment of Mr. Amos Macelden, to the extent of 601., at quarterly ac
(n) Kay v. Groves, 3 Moo. & P. 634, S. C. 6 Bing. 276, S.C. 4 Car. & P. 72,(14).
(0) Nicholson v. Paget, i Cr. & Mees. 48.
(14) In this case, assumpsit was brought against the defendant upon the above guarantee, which bore date the 18th of November, 1828. At the trial it was proved that on the 19th of November, 1828, the plaintiff delivered to Taylor five sacks of flour. On the 24th, Taylor sent back three and a half sacks out of the first five, as being of bad quality, and three and a half other sacks were supplied that day. For the first parcel Taylor gave a return ticket to the plaintiff's carman as follows:
“ Received from Mr. Kay, On account of Mr. Groves, (the surety) five sacks of whites.
“W. Taylor." The return ticket given for the second parcel was :“Received from Symons' Wharf, five sacks flour balls, on account of Mr. Kay.
“W. Taylor." he defendant paid into court 3l. 178., the price of a sack and'a half of flour. C. J. Tindal, before whom the cause was tried, observing that the plaintiff had proved no second order from the defendant, nor any agreement on his part that three and a half sacks should be substituted on the 24th of November, for three and a half sacks delivered on the 19th, and to be paid for within a month from that day, left it to the jury to determine whether the delivery on the 24th was made under the defendant's guarantee, and in substitution of any part of the delivery on the 19th, or whether it was made under a new contract. The jury having found for the defendant, a rule nisi for a new trial was obtained by the plaintiff's counsel on the ground that the guarantee was a continuing guarantee, at least to the extent of five sacks, and that the jury should have been directed to find for the plaintiff to that extent, but which rule the Court of Common Pleas afterwards, upon argument, discharged.
count, bills two months, for goods to be purchased by him of W. and D. Melville” (p).
“ You may let Larry have coals to 501., for which I will be answerable at any time”(9).
Where a debtor gave his creditor a cognovit for the payment of his debt by instalments, with a proviso, that on default made in paying any instalment, judgment might be signed and execution issue for the whole debt, and a third person undertook that within a certain time after any notice given to him for that purpose, the debtor should attend at a certain place, so that in case of any of the instalments not being previously discharged, a capias ad satisfaciendum to be issued on the judgment to be entered up on the cognovit, might be duly executed, and in default of the debtor's appearing at the time and place stipulated, the surety undertook to pay the debt and costs, and the first instalment being unpaid and notice given, the debtor appeared at the proper time and place, but was dismissed on promising to pay the instalment in a few days, which he did : it was held that the object of the agreement was, that upon any default made, the creditor should have execution, and should have it without trouble by means of the surety's undertaking, and that the agreement of the surety was satisfied by his having once rendered the debtor to be taken in execution on the cognovit, and that he was not bound to produce him again upon notice, upon default as to a subsequent instalment(r).
3rdly. Of guarantees with reference to the persons to whom, or the persons in whose favour, they are given.
In the construction of instruments entered into by (p) Melville v. Hayden, 3 B. & (r) Turner v. Pyne, 1 Ad. & El. Ald. 593.
(9) Bovill v. Turner,
a surety with persons carrying on business together in co-partnership, the object of which instruments is, to answer for the fidelity of persons during the time they are in the service of the partners, or to secure the repayment of advances made by the partners to the persons undertaken for, in the course of their dealings, it has been held, that where an engagement is entered into by a surety with the partners' nomination, whereby the surety engages to be answerable for the repayment of all sums which shall be advanced by them to the principal, it will not extend to sums advanced to the principal by the surviving or continuing partners, after the decease(s), or retirement(t), of any of the partners; for it is probable that the surety was induced to enter into such a security by a confidence which he reposed in the integrity, caution and accuracy, of one or two of the partners, and it may be that the partner dying or going out, may be the very person on whom the surety relied; or that the surety intended to have the joint discretion of all the partners to direct and moderate their advances, and would not have relied on the discretion with which the surviving or continuing partners might authorize advances to the principal, and it would therefore be very unreasonable to hold the surety to his contract, after such change.
The same law applies to a case where the parties undertaken for, carry on business in co-partnership, and one of them dies or retires (u); for the motive which induced the surety to give his security, may have been the opinion entertained by him as to the integrity and prudence of the deceased or retiring partner; or where the partners with whom the ori
(s) Weston v. Barton, 4 Taunt. ex parte Marsh, 2 Rose, 239. 673; Strange v. Lee, 3 East, 484. (u) Simson v. Cooke, i Bing.
(t) Myers v. Edge, 7 T. R. 254 ; 452; S.C. 8 J. B. Moo. 588.
ginal contract was entered into, introduced a new partner into their firm(v); for the surety might have been disposed to withhold the security, had he known at the time when he entered into that contract, that the advances were to be made to the party for whom he is surety, by the person then admitted into the firm; or where the person undertaken for was, at the time the undertaking was given, a sole trader, and he afterwards takes a person as a partner (w); for the surety became responsible for the acts of his principal, and not for those of any future partner with whom he might associate.
And the surety's liability ceases upon the death. or retirement of a partner in the firm to whom the guarantee is given, in a case where the engagement on the part of the surety is to be answerable for the repayment of monies advanced to the principal, by persons carrying on business together as partners, or any or either of them (x); or where the persons undertaken for are partners, and the surety's engagement is to secure the repayment of monies advanced to the principals, or any or either of them(y), the words “or any or either of them” being confined in their meaning to monies advanced by, or to, any or either of them during the copartnerships respectively. So where the condition of a bond, after reciting that the obligee had taken and employed one P. as his book-keeper and accountant, was, that he should account for and pay to the obligee, his executors or administrators, all sums of money received by the said P. on account of the obligee, his executors, or administrators, and the executors of the obligee having carried on their
(v) Wright_v. Russell, 2 Blk. (2) Weston v. Barton, 4 Taunt. 934; S. C. 3 Wils. 530; Spiers v. 673. Houston, 4 Bli. N. S. 515.
(y) Simson v. Cooke, i Bing (w) Bellairs v. Ebsworth, 3 452 ; S. C. 8 J. B. Moo. 588. Camp. 53.
testator's trade after the obligee's death, and retained P. in the same employment, it was held that the surety for P. was not answerable for monies received by P. during the time he was in the service of the executors, that the service in the contemplation of the parties was the service of the obligee, and that there was no intention that the bond should be extended beyond the life of the obligee, and that though P. was to account to the executors, it was only for money belonging to the obligee(z).
The obligation of the surety may, however, be so shaped as to extend to the surviving partners, they carrying on the concern upon the death of one of them(a); or to the introduction of other persons into the firm (b), and this may be done upon the construction of a letter raising an agreement to that effect, where the original instrument is insufficient for such a purpose (c); but an undertaking to be answerable to the partners and the survivors or survivor of them, or the executors or administrators. of such survivor, will not extend to a new partnership(d), although the difference in the two partnerships consists only in the introduction of the executor of a deceased partner in the place of his testator, to the latter of whom · power had been given by the articles under which the original partnership was formed, and before the indemnity was given, to bequeath his share of the concern in favour of his wife and children, and who had accordingly bequeathed it to his executor, in trust for such wife and children (e).
If, however, the security is given to the house, as a banking-house or house of trade, and not to the (2) Barker v. Parker, 1 T. R. Pease v. Hirst, 10 B. & Cress. 122.
(c) Ex parte Marsh, 2 Rose, (a) See Simson v. Cooke, 1 Bing.
(d) Pemberton v. Oakes, 4 Russ. (6) Şee Simson v. Cooke, supra ; Augero v. Keen, 1 Mees. & W.390; (e) Pemberton v. Oakes, supra.