« ΠροηγούμενηΣυνέχεια »
Bowling to assure the inhabitants of Pembroke and its vicinity, that I do hereby undertake to be accountable for the payment of the notes issued by the Milford Bank, so far as the sum of 30,0001. will extend to pay, which will be an additional security to the public to that amount, to the estate and effects of Charles Allan Phillipps and Thomas Phillipps, esquires, the partners in the said bank” (k).
3rdly. Where the consideration which appears upon the written agreement is in part sufficient, and in part insufficient.
“I do hereby undertake to pay for the gas that may be consumed in the Minor Theatre at Manchester, and for the lamps outside during the time it is occupied by my brother-in-law, and I engage for all the arrears now due”(1). It was held, that the con
(k) Phillipps v. Bateman, 16 East, (1) Wood v. Benson, 2 Cr. & J. 356, (1).
(1) In this case an action was brought against the defendant upon his undertaking, by an individual holder of some of the notes who had taken them after notice of such undertaking, but before the bank stopped payment, which took place shortly after the undertaking was given, and although the Court was of opinion that no consideration appeared upon the undertaking for the promise, the case was decided upon the ground, that there was no contract between the plaintiff and the defendant; the promise of the defendant not being a promise to an individual, but only a promise to add 30,000l. to the then failing funds of the Milford Bank.
(2) The guarantee declared on in the case of Russell v. Moseley, (6 J. B. Moo. 521, and 3 Brod. & B. 211,) very closely resembles the above guarantee in Wood v. Benson; the guarantee in the former case was as follows: “I hereby guarantee the present amount of Miss Harriett Moseley, due to R. T. Shortridge and Co., South Shields, of 1121. 43. 4d., and what she may contract from this date to the 30th of September next.” It appeared upon the trial that Harriett Moseley was indebted to the plaintiffs at the time the guarantee was given to them, in the sum of 112l. 4s. 4d., upon a balance of accounts between her and them in respect of goods furnished to her in the plaintiff's trade and business of glass merchants, and that in consequence of the guarantee, the plaintiffs sold to her other goods in their said trade or business of glass merchants, of the value of 1501. Dallas, C. J., before whom the cause was tried, being of opinion that no sufficient consideration for the promise was expressed on the face
tract resolved itself into two parts, the one to pay for all the gas which may be consumed, which is prospective, or executory, and therefore good; the other, to pay for all the arrears then due, which is past, or executed, and for which there is no consideration expressed on the instrument to support it, and which is consequently void.
To the rule above laid down, requiring that in all collateral undertakings, the consideration for the promise must be stated in writing, there seems to be the exception which has been before adverted to, (see ante, p. 3,) that if the party giving the undertaking is an attorney of one of the courts at Westminster, and gives such undertaking in that character, a court of law, in the exercise of the control which it has over its officers, will compel the attorney to perform the undertaking, and will not allow him who is deemed to be conusant of the law, by entering into a contract which he either knows, or ought to have known, is void, to deprive the party of his remedy, and then take advantage of his own wrong (m) (3).
(m) Evans v. Duncombe, i Cr. i Cr. & J. 374, in notis. & J. 372 ; and see in re Greaves,
of the instrument, directed a non-suit, but gave the plaintiffs leave to move to set it aside, and enter a verdict for them for 1501., or any less sum the Court should think they might be entitled to recover under the guarantee. The parties, however, seem to have come to a compromise. (See the report of the case in J. B. Moore.)
(3) Many of the cases which have been determined upon the point as to the statement of the consideration, have turned on distinctions extremely nice, and indeed it appears difficult to reconcile all the
Dallas, C. J., under the impression that the decision of Wain v. Warlters (5 East, 10) had been shaken by the opinions expressed by Lord Eldon in ex parte Minet (14 Ves. 189), and in ex parte Gardom, (15 Ves. 287), and conceiving also, that the doctrine laid down in Wain v. Warlters, and in the cases which followed it, enabled persons (who after due caution and deliberation had submitted to be bound for the responsibility of others, and thereby occasioned extensive credit to be given upon the faith of such indemnities) to escape from the engagements they had so deliberately entered into (see Boehm v. Campbell, 8 Taunt. 679; S. C. 3 J. B. Moo. 15); in his anxiety to dis
III. What is a sufficient memorandum, or note of the agreement.
cover upon the written agreement a consideration stated to sustain the promise, appears, in the two cases of Boehm v. Campbell, and Pace v. Marsh (see ante, pp. 66 and 67), to have fixed upon considerations which the language of the guarantees can scarcely warrant. The late Chief Justice of the Court of Common Pleas (see Morley v. Boothby) has expressed his disapprobation of the decisions in both of the last-mentioned cases. “ In both cases,” the same learned Judge observes, a by-gone consideration was expressed on the guarantees, and as the guarantees did not show any advantage to the persons in whose favour they were made, or any inconvenience suffered by the persons to whom they were given, the promises were invalid.”
The opinion which Lord Eldon is reported to have expressed upon the decision of Wain v. Warlters, is (as every opinion entertained by that eminently learned judge must be) entitled to the greatest possible attention and respect; but at the same time it must not be forgotten, that the judgments of Lord Eldon in the cases in bankruptcy above referred to, are not (and indeed no case which his Lordship has decided, is) in opposition to the doctrine contained in Wain v. Warlters; in each of the cases reported in Vesey, jun., there is a sufficient consideration for the promise stated upon the face of the undertaking.
Admitting, however, the principle laid down in the case of Wain v. Warlters, as to the interpretation of the Statute of Frauds, to be correct, namely, that the Statute requires the consideration for the promise, as well as the promise itself, to be in writing, it may, nevertheless, be doubted, whether if the last-mentioned case were now to be decided for the first time, the guarantee upon which the question arose would not receive a more liberal interpretation than that which it then received.
It is stated by Patteson, J., in the case of James v. Williams, (5 B. & Ad. 1109,) that if the consideration can be reasonably collected or implied, it is sufficient, and by the present learned Chief Justice of the Court of Common Pleas, in the case of Newbury v. Armstrong, (Mood. and M. 389,) that if the Court can by fair construction as it were “spell out” the consideration from the contract, it is enough. Now it is perfectly clear, that if there is an existing debt between D. and C., and D. is apprehensive of being sued for that debt, and I. S. on the behalf of D. give his undertaking in writing to the creditor, whereby he engages to pay the money D. owes him, provided he forbears to sue D. until half-past four in the day, and the creditor forbears accordingly, I. S. will be liable. Any time forborne, however short, if definite, is sufficient to support the promise; it may be of consequence to the debtor, or of detriment to the creditor. (See ante, pp. 55 and 58, and the judgment of Patteson, J. in James v. Williams.) Can it then be said, that if I. S. by his written undertaking agrees to pay the creditor the debt due to him from his debtor by half-past four this day, (see the guarantee in Wain v. Warlters, ante,) and the creditor waits till that period has expired, that it may not be reasonably collected or implied from the written agreement, that the
The word “ agreement,” in the 4th section of the Statute of Frauds, is satisfied, if the writing states the subject matter of the contract, the consideration, and is signed by the party to be charged (n); and it is not essential to the validity of the writing that it should show mutuality (), (namely, by making it obligatory on the creditor to do that in favour of the principal, which it was the object of the surety to induce the creditor to do, when the surety gave him his indemnity, or rendering the creditor liable to a cross-action by the surety, or the principal, if he did not,) it is sufficient if the party sued is shown to be liable (4).
Nor need the writing (if it disclose the real substance of the cause of action, and render it unneces
(n) Per Tindal, C.J., in Lay- S. C. 3 Moo. & P. 509; S. C. thoarp v. Bryant, 2 Bing. N. Č. Mood. & M. 389; and see the ob735.
servations of Parke, B., in Mozley (0) Stadt v. Lill, 9 East, 342 ; v. Tinkler, i Cr. M. & Ros. 692; S. C. nom. Stapp v. Lill, i Camp. and of Patteson, J., in Morton v. 242; Newbury v. Armstrong, 6 Burn, 2 Ad. & Ell. 19. Bing. 201; S. C. 4 Car. & P.59;
consideration for the promise was the creditor's forbearance until the time mentioned ?
The case of Wain v. Warlters, however, has received the sanction of a variety of judges in all the common law courts, and most (if not all) of the subsequent cases have been determined since the opinion of Lord Eldon was expressed. Saunders v. Wakefield, and James v. Williams, were decided in the Court of King's Bench; Jenkins v. Reynolds, and Morley v. Boothby, in the Court of Common Pleas; and the very recent case of Cole v. Dyer was decided in the Court of Exchequer. The authority, therefore, of the case of Wain v. Warlters cannot, it is conceived, at the present day be questioned, though, as the learned Chief Justice of the Court of Common Pleas has observed, (see Mood. and M. 391,) “ the doctrine contained in that case, and those cases which have followed it, has been carried to the extreme edge of the law.”
(4) If J. S. guarantee the payment of any goods which C. shall deliver to D., Č. is not obliged to deliver any goods, but when the goods are supplied, a right of action against J. S. accrues to C. to recover the amount. So where a debt already exists between D. and C., and J. S. undertakes that if C. will give D. a certain definite time to pay the debt, and if D. does not then pay the debts J. S. will, C. is not bound to wait the time stated, but if he does do so, and D. makes default in payment, J. S. becomes responsible.
sary to have recourse to oral testimony to explain the consideration for which it was given) set out all the circumstances in detail that may have been agreed on between the parties (p), or state the amount for which the surety was to be answerable (9), or even the name of the creditor for whom the surety intended his indemnity (r); in such cases, the amount of the debt, and the person to whom it is due, and for whom the guarantee was intended, may be explained by parol testimony,
(p) See Jenkins v. Reynolds, 3 242; Bateman v. Philips, 15 East, Brod. & B. 14; S.C. 6 J. B. Moo. 272; Shortrede v. Cheek, 1 Ad. & 86; Morris v. Stacey, Holt, N. P. Ell. 57; Newbury v. Armstrong, C. 153.
6 Bing. 201; S. C. 4 Car. & P. (9) Ex parte Gardom, 15 Ves. 59. 286; Stadt v. Lill, 9 East, 348; (r) Bateman v. Philips, 15 East, S. C. nom. Stapp v. Lill, i Camp. 272, (5).
(5) The circumstances in Bateman v. Philips were these: the plaintiff was about to sue one D. Williams for a debt of 801., and had employed an attorney of the name of Gwyn for that purpose, when the defendant addressed the following letter to Mr. Gwyn:-“The bearer, David 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.” Mr. Gwyn was called as a witness at the trial to prove that this letter was addressed to him as the attorney for the plaintiff, and that it was brought to him by Williams, and the amount of the debt due from Williams to the plaintiff was also proved. It was objected that the name of the plaintiff was not mentioned in the letter, nor the amount of the debt, but it was held that the parol evidence did not go to extend the terms of the agreement in writing, but only to show that the letter was addressed to Mr. Gwyn, as the attorney for the plaintiff, and not as the principal or creditor of Williams.
In Shortrede v. Cheek an action had been brought upon the following guarantee: “You will be so good as to withdraw the promissory note, and I will see you at Christmas, when you shall receive from me the amount of it, together with the memorandum of my son's, making in the whole 451.” At the trial the plaintiff proved a promissory note for 351. made by the defendant's son, and payable to the plaintiff, but not the memorandum :--the guarantee was proved, and a subsequent admission by the defendant that he had to pay the plaintiff 45l. due from his son. It was held, that the evidence was properly admitted to explain whether the promissory note was a note of the father or of the son, which the letter itself had left unexplained, and that the plaintiff was entitled to recover the amount of the promissory note, although he had not produced the memorandum.
It would seem, however, that if the defendant in the first case could have shown that Williams was indebted at the time to another client