1851. COLBOURN บ. DAWSON. : the defendant then promised the plaintiffs to guarantee to them the price of the said goods and chattels, to the amount of 2001. And the plaintiffs aver, that, although they, confiding in the said promise of the defendant, did afterwards, to wit, on the day and year aforesaid, sell and deliver to the said Joseph Ivey Baker and William Bennet Baker certain goods and chattels, to wit, 1000 tons of iron, on the credit aforesaid, at and for a certain reasonable price, amounting, to wit, to the sum of 2007.,— of which said several premises the defendant then had notice; and although the said credit and time for payment of the said price of the said goods and chattels had elapsed before the commencement of this suit, to wit, on the 21st of June, 1849; and although the said Joseph Ivey Baker and William Bennet Baker were afterwards, to wit, on the day and year last aforesaid, requested by the plaintiffs to pay them the said sum of 2001.; and although the said Joseph Ivey Baker and William Bennet Baker have not paid the said sum of 2001., or any part thereof, of which said last-mentioned several premises the defendant, to wit, on the day and year last aforesaid, had notice, and was then requested by the plaintiffs to pay them the said sum of 2004.; yet the defendant had not paid the said sum of 2001., or any part thereof," &c. The declaration also contained a count upon an account stated. The defendant pleaded,-first, non assumpsit,-secondly, to the first count, that the plaintiff did not sell and deliver the goods, or any part thereof, to Joseph Ivey Baker and William Bennet Baker, as in the first count alleged, thirdly, to the first count, payment by Joseph Ivey Baker and William Bennet Baker, and acceptance by the plaintiffs, of 2007., before action brought, in full satisfaction and discharge of the cause of action in the first count mentioned. Upon these pleas issues were joined. The cause came on for trial before Lord Campbell, at the last Summer assizes for the county of Gloucester, when a verdict was entered for the plaintiffs for 921., subject to the opinion of the court on the following case: On the 24th of November, 1848, Messrs. Baker & Co. were indebted to the plaintiffs in the sum of 591. 8s. 7d., for certain quantities of iron before then sold and delivered by them to Messrs. Baker & Co., between the 11th of October, 1848, and the 24th of November, 1848. On the last-mentioned day, the plaintiffs wrote to the defendant the following letter: 66 Bankfield Iron Works, Bilston. "Mr. Thomas Dawson, "Sir,-We are doing business with Messrs. Baker & Co., of St. John Street, Wolverhampton, and we require a guarantee to the amount of 2007.; and they refer us to you for one. Trusting you will not fail to furnish us, (Signed)" Colbourn, Growcutt, & Turleys, "24th November, 1848." To this letter, the defendant replied, on the 27th of the same month, by sending a letter and document, of which the following is a copy : "Midland Railway Engineers' Office, "Derby, Nov. 27th, 1848. “Gentlemen,—In reply to yours of the 24th instant, I beg to say that I have no objection to become security for Messrs. Baker & Co., of St. John Street, Wolverhampton; and subjoin the following memorandum to that effect: : "2007. "I hereby engage to guarantee to Messrs. Colbourn, Growcutt, & Turleys, iron-masters, the sum of 2001. 1851. COLBOURN v. DAWSON. 1851. COLBOURN v. DAWSON. for iron received from them for Messrs. Baker & Co., as annexed. (Signed) "Thomas Dawson." After the receipt of the foregoing letter and statement, the plaintiffs supplied Messrs. Baker & Co., at various times, with iron, amounting in the whole to 921. The last delivery was on the 5th of February, 1849. The plaintiffs would not have supplied Messrs. Baker & Co. with any iron after the 27th of November, 1848, if they had not had what they believed to be a good guarantee in law from the defendant for the sum of 2007.; and the iron sold and delivered to Baker & Co. after the 27th of November, 1848, was so sold and delivered upon the faith of the letter and document sent by the defendant to the plaintiffs on that day being a good guarantee in law for the debt of Messrs. Baker & Co. to the extent of 2001. After the 5th of February, 1849, when the last delivery of iron was made, and before the commencement of this action, Messrs. Baker & Co. became bankrupts. At the time of commencing the action, the sum of 1241. was still due from Messrs. Baker & Co. for the iron so sold by the plaintiffs to them. If the court should be of opinion that the letter and document of the defendant, signed by the defendant, and dated the 27th of November, 1848, constituted a guarantee for so much of the debt of Messrs. Baker & Co. as was incurred after the 27th of November, 1848, and that they proved the first issue, then the verdict for the plaintiffs for the sum of 921. was to stand. If the court should be of opinion that the said letter and document did not constitute a guarantee for the debt of Messrs. Baker & Co., or did not prove the first issue, then the verdict was to be entered for the defendant. Keating (with whom was Kettle), for the plaintiffs. (a) The question is how far the guarantee set out in the case is a good guarantee, corresponding to the statement thereof in the declaration. Its terms are a little ambiguous but enough appears upon the face of it to shew that it was intended to be a prospective guarantee; and the plaintiffs can only recover upon this declaration, as framed, in respect of prospective deliveries of iron. In the case of Haigh v. Brooks (b), the defendant gave the plaintiffs a guarantee in these terms:-"Messrs. H. In consideration of your being in advance to L. in the sum of 10,000l. for the purchase of cotton, I do hereby give you my guarantee for that amount on their behalf" and it was held, by the court of error, that this guarantee did not necessarily imply a past advance, and that the plaintiffs, on a trial, might have offered evidence to show that future advances had been contemplated. [Cresswell, J. The decision in that case was, that the giving up of that guarantee was a good consideration for a subsequent promise.] The judgment could only have been in the terms it is, consistently with the instrument's being a prospective guarantee. In Goldshede v. Swan (c), the guarantee was in these words," In consideration of your having this day advanced to our client Mr. V. D., 7501., secured by his warrant of attorney payable on the 22nd of August next, we hereby jointly and severally undertake to pay the same on default, &c. Dated the 20th of June, (a) The points marked for argument on the part of the plaintiffs, were,-"That it sufficiently appears that the consideration for which the guarantee is given, is an executory consideration to the effect stated in the first issue; that the guarantee is so ambiguous on the face of it, that VOL. X.-C. B. evidence is admissible to explain (b) 10 Ad. & E. 309., 2 P. & 3 D 1851. COLBOURN v. DAWSON. 1851. COLBOURN บ. DAWSON. 1840:" and it was held, that the instrument was sufficiently ambiguous to admit of evidence to shew that the advance was not a past one, but was made simultaneously with the execution of the guarantee. [Jervis, C. J. That is stronger than any of the cases.] Butcher v. Steuart (a) is almost identical with it: the words of the guarantee there were,-" In consideration of your having released the above-named defendant from custody, I hereby engage," &c.; and it was held that this agreement might be read to be, as it really was, prospective. So, in Steele v. Hoe (b), where the guarantee was as follows,-" In consideration of your having resigned the office of deacon, and your connexion with the Baptist church and congregation at Clapham, I hereby agree to hold myself responsible to you for the payment of the sum of 1507. due to the Rev. J. E. by the Baptist church at Clapham, and also the interest for the same, at &c., being the residue of the sum of 700l. principal and interest remaining unpaid, for which you and Mr. P. M., deacons of the said church, became responsible to the Rev. J. E. by an instrument bearing date," &c., -was held to express a concurrent consideration. Patteson, J., in delivering the judgment of the court, there says: "We think that the words, in their ordinary acceptation, are capable of expressing a past or a concurrent consideration: and as, upon one construction, the instrument is void, the other is to be adopted, which makes it valid. The expression that a promise is founded upon a consideration, conveys the notion that the consideration precedes the promise in the mind of the party making the promise. He promises because the consideration exists; and this form of expression is shewn by the authorities to have been frequently re (a) 11 M. & W. 857. (b) 19 Law Journ, N. S., Q. B., 89. |