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question of the statement of the consideration. They may be classed under the three following heads : namely, Ist. Those where the consideration sufficiently appears upon the written agreement; 2ndly. Where no consideration, or no sufficient consideration appears; and, 3rdly. Where the consideration is in part sufficient, and in part insufficient.
1st. Where the consideration sufficiently appears upon the written agreement. “I
guarantee the payment of any goods which I. Stadt delivers to John Nicholls”(m).
“We agree and engage to guarantee for what twist Thomas Tapp may purchase of you, from the 28th ultimo, to the 1st of January, 1808”(n).
In the above cases the consideration is executory or prospective, the stipulated delivery and sale of the goods being the consideration appearing upon the face of the writings.
“Entertaining the highest opinion of Mr. Patrick Considine's integrity of character, as well as propriety of conduct, we therefore hold ourselves responsible to you in the sum of 5001. sterling, for his discharging faithfully and honestly any duty assigned to or trust reposed in him” 0). Held that the letter was to be understood as though it expressed a promise to be responsible for Mr. Considine, if the person to whom the letter was addressed would employ him, being tantamount to saying, “If you will employ Mr. Considine, we will guarantee his fidelity” (7).
(m) Stadt v. Lill, 9 East, 348 ; S. C. nom. Stapp v. Lill, 1 Camp. (0) Lysaght v. Walker, 5 Bli.
N. S. 1. (n) Ex parte Gardom, 15 Ves.
(7) It appeared that at the time when the above letter or guarantee was written, Mr. Considine had no situation or employment under the persons to whom it was addressed or given, but that circumstance is allowed to have no weight in the construction of the written agreement.
“ To Mr. John Newbury,
“Sir, “I, the undersigned, do, hereby agree to bind myself to be security to you for Mr. I. Corcoran, late in the employment of Mr. Ransom, for whatever you may intrust him with while in your employ, to the amount of 501., in case of default to make the same good”(p). It was held, that the words are all prospective, and that it may be fairly implied that Mr. Corcoran had left one service, and that the guarantee was given in consideration of his being taken into another; or, “ If you will intrust one who has left the service of another,” &c.
“I do hereby agree to become surety for Mr. R. G., now your traveller, in the sum of 5001., for all money be may receive on your account” (q). It was held, that the consideration for the
guarantee was the continuance of the traveller in the service of the plaintiffs.
“ December 24. “ I herewith hand you drafts drawn by Mr. Wallis, and accepted by Mr. Bromley, and indorsed by R. Burns, and should the bills not be honoured when due, I promise to see that they do so ” (r). It was held, that it appears, in consideration that the plaintiff would take the notes, the defendant would indemnify him (8). (p) Newbury v. Armstrong, 6
Ry. 62. Bing. 201; S. C. 4 Car. & P. 59; (r) Morris v. Stacey, Holt, N. S. C. Mood. & M. 387.
P. C. 153. (q) Ryde v. Curtis, 8 Dowl. &
(8) The defendant acted as an agent, and had ordered some shoes from the plaintiff, and proposed to give bills in payment, (but to which bills he was no party,) the plaintiff pressed the defendant to indorse the bills, but the latter told the plaintiff he would not indorse them, but would give him a letter of guarantee, which would do as well, and accordingly gave him the above guarantee.
“ London, 14th August, 1818. “ Messrs. Boehm & Co.
Gentlemen, “ Our mutual friends, Messrs. Sawyer, Tobler, & Co., having accepted the under-written bill drawn on them by your firm, I hereby give my guarantee for the due payment of the same, should it be dishonoured by the acceptors "(s). Then followed a copy of the bill guaranteed, which was dated Antwerp, 1st August, 1818, and was drawn by Boehm & Co. upon, and accepted by, Sawyer & Co., and purported to secure 1,0261. 7s. 6d. three months after date. It was held, that the consideration was sufficiently expressed ; namely, that in consideration that the plaintiffs would take a bill drawn on, and accepted by, Sawyer & Co., the defendant undertook to guarantee the payment of it, in the event of its being dishonoured (9).
(s) Boehm v. Campbell, 8 Taunt. 679; S. C. 3 J. B. Moo. 15.
(9) It appears from the report, that the plaintiffs had shipped corn for Sawyer & Co. to the amount of 999l. 17s. 6d., and that the plaintiffs held the acceptance of Sawyer & Co. for that sum, but suspecting their solvency, the plaintiffs had applied to the defendant to give them a guarantee, without which they refused to part with the bill of lading of the corn. Upon this the defendant wrote the above letter. The sum for which the bill was drawn above the price of the corn, was made up by adding the insurance, and other charges.
The consideration for which the guarantee was in fact given, narnely, to enable the person to whom the corn had been shipped, to obtain possession of the bill of lading, and consequently the absolute disposition of the corn, would, but for the Statute of Frauds, have been sufficient, but the question to be considered since the passing of the Statute, is, whether the consideration which was suggested by the Court, as the foundation for the promise, can be said to be expressed upon the face of the instrument. The case of Boehm v. Campbell was considered by Dallas, C. J., to be similar to Morris v. Stacey. (See supra.) But it is to be observed, that, in the latter case, it appears upon the undertaking, that the bills were delivered simultaneously with the guarantee, but from the undertaking in the case of Boehm v. Campbell, for any thing that appears to the contrary, the creditor was then, and possibly had been for some time, in the possession of the accepted bill.
“ Mr. Livie having chartered your ship Robert to bring a cargo of timber from New Brunswick, and the same being landed to the charteree, and he having paid you one-half of the freight, and given you his acceptance for the remaining half at four months' date, I engage to be accountable to you for the amount of said
acceptance, should it not be paid when due” (t). It was held to be not distinguishable from Brehm v. Campbell, and that it must necessarily be inferred that the plaintiff would not have taken Mr. Livie's acceptance for the remainder of the freight due to him, unless the due payment of it were guaranteed.
Payne plaintiff, and Vaux defendant. “Mr. R. Payne having, at my instance and request, consented to suspend proceedings against the above-named defendant on the cognovit signed by him in this cause, and given for payment of the debt this day, I do hereby, in consideration thereof, personally undertake and promise to pay to the plaintiff the sum of 301. on account of the said debt on the 1st day of April now next, and the further sum of 531. 38. within four months next ensuing the 1st day of April” (u). It was held, that as the request must have preceded the consent to suspend proceedings, the contract might be considered as executory, and that the consideration for the promise was, that the plaintiff would suspend his proceedings against Vaux, the defendant in the action, at all events until the 1st day of April.
So where it appeared that one Major Walsh owed the plaintiff 231. 10s. for the hire of a cabriolet, and that the defendant (who was Walsh's attorney) had written the following letter to the plaintiff, at a time when Walsh was about to go abroad, and the plaintiff had been pressing for his debt :
(t) Pace v. Marsh, 1 Bing. 216; Cress. 423; S. C. 1 Man. & Ry. S. C. 8 J. B. Moo. 59.
708. (u) Payne v. Wilson, 7 B. &
“ Red Lion Square, 24th March, 1838. Major Walsh being again disappointed in receiving remittances, and you expressing yourself inconvenienced for money, I enclose you his acceptance, payable here at two months; you may put your name as drawer, and safely pay it away.
W. M. Kearns :" and that the plaintiff then called on the defendant to say he would not take the bill unless the defendant put his name to it, whereupon the defendant wrote on the back of the above letter, “I never put my name to bills: respectable professional men should not, but I will see it paid for Major Walsh.
W. M. K.” It was held, that the defendant's indorsement on the letter, which he had himself forwarded with the bill of exchange to the plaintiff, amounted to this :-“In consideration of your forbearing to sue Major Walsh for two months, I will pay the bill if he fail to do so ”(v).
“ The bearer, D. Williams, has a sum of money to receive from a client of mine some day next week, and I trust you will give indulgence till that day, when I undertake to see you paid” (w). It was held sufficient to charge the defendant with the debt due from Williams, upon parol proof of its amount, and that Mr. Gwyn, to whom it was addressed, was the attorney of the plaintiff, and received the letter in that character from Williams the bearer, and not as the creditor or principal of Williams.
“ You will be so good as to withdraw the pro
(v) Emmott v. Kearns, 5 Bing. N, C. 559.
(w) Bateman v. Philips, 15 East, 272.