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1851.

COLBOURN

Dawson.

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 :

Bankfield Iron Works, Bilston. “ Mr. Thomas Dawson,

“Sir,- We are doing business with Messrs. Baker & Co., of St. John Street, Wolverhampton, and we require

guarantee to the amount of 2001.; 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:

- 2001. “I hereby engage to guarantee to Messrs. Colbourn, Growcutt, & Turleys, iron-masters, the sum of 2001.

1851.

COLBOURN

v. Dawson.

for iron received from them for Messrs. Baker & Co., as annexed.

(Signed) Thomas Dawson."

delivered upon

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 2001.; and the iron sold and delivered to Baker & Co. after the 27th of November, 1848, was so sold and

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.

1851.

COLBOURN

v. Dawson.

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 10,0001. 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 ar evidence is admissible to explain gument on the part of the plain- it, and establish its validity; and tiffs, were,—"That it sufficiently that the evidence set forth in appears that the consideration the case sufficiently explains the for which the guarantee is given, meaning of the said guarantee, is an executory consideration to and establishes its validity.” the effect stated in the first is (6) 10 Ad. & E. 309., 2 P. 8 sue; that the guarantee is so D. 477., 3 P. & D. 452. ambiguous on the face of it, that (c) 1 Erch. 154.

VOL. X.-C. B.

3 D

1851.

COLBOCRN

V.

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. (Jerris, 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 1501. 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 7001. 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.

(6) 19 Law Journ., N, S., Q. B., 89.

1851.

COLBOURN

Dawson.

ceived when the consideration and promise are concurrent. Each side of a contract is considered a promise, according to the particular party speaking of it; and, if each party were to put into writing his own promise, each side of the contract would in turn appear to have preceded the other, though both formed one agreement. The plaintiff might write, ‘You having guaranteed, I resign;' and the defendant, “You having resigned, I guarantee.' So are the authorities." The principle which ought to govern these instruments is well defined by Alderson, B. in Mayer v. Isaac.(a)

Crompton (with whom was Gray), contrà. (6) This guarantee relates to goods which have already been received,-possibly also to what were received at the time,—but certainly not to future supplies. [Cresswell, J. If the letter of application shewed that future dealings between the plaintiffs and Baker & Co. were contemplated, you would construe the word “received" as future, would you not ?] If the whole formed one instrument, undoubtedly. [Cresswell, J. I take the guarantee to apply to the previous letter asking for it. Jervis, C. J. The language of the defendant's letter and of the guarantee sufficiently connect them.] The documents declared on in Butcher v. Steuart and Goldshede v. Swan, were not inconsistent with the giving of the consideration and the execution of the guarantee being simultaneous acts. The doctrine of those cases is well explained in Steele v. Hoe. The court will not say that this guarantee can only apply to future supplies,

(a) 6 M. & W. 605.612. no good or valid consideration for

(6) The points marked for ar such guarantee; and that, the gument on the part of the de guarantee not being ambiguous fendant, were,—"that, the con on the face of it, but being a sideration for which the guarantee complete guarantee, no evidence is given being executed, there is is admissible to explain it.”

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