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. (b) 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.

(b) The points marked for argument on the part of the defendant, were,-"that, the consideration for which the guarantee is given being executed, there is

no good or valid consideration for
such guarantee; and that, the
guarantee not being ambiguous
on the face of it, but being a
complete guarantee, no evidence
is admissible to explain it."

1851.

COLBOURN

v.

DAWSON.

1851.

COLBOURN

V.

DAWSON.

which is all the plaintiffs can recover for on this declaration. The promise alleged is, to pay 2001. for goods thereafter to be furnished, not for what had been supplied before. [Williams, J. Suppose the parties had met, and agreed that no goods had been supplied,-do you say that then the consideration would have been a past consideration?] That is not this case. [Cresswell, J. The defendant says, I will guarantee the subsequent supply, and also the former supply, to the extent of 2001.] That is not quite what the defendant has said. The contract alleged in the declaration is, that, if the plaintiffs will go on supplying goods (there having been goods sold before), the defendant will guarantee both under a certain limit, but not either the one or the other to that extent. [Williams, J. The consideration is sufficiently express: but the difficulty is, as to the promise, which must be in writing.] Bentham v. Cooper (a) is very analogous to the present case. [Cresswell, J. Where do you find any past consideration here for the defendant's promise?] Not a past consideration, but a consideration as to past deliveries of goods. To sustain this declaration, both the promise and the consideration must be future. In Bell v. Welch (b), the defendant gave the plaintiff the following guarantee:-"We, the undersigned, hereby indemnify the National Provincial Banking Company, to the extent of 1000l., advanced or to be advanced to R. P., by the said company." It appeared, that, at the time the guarantee was given, R. P. was indebted to the bank in a sum exceeding 1000l.: and it was held, that the guarantee did not, upon the face of it, or construed with reference to the extrinsic circumstances, disclose a sufficient consideration. [Williams, J. How do you reconcile your present argument with Steele v. Hoe?

(a) 5 M. & W. 621.

(b) Antè, Vol. IX. P. 154.

The

possibility of its being bad, is not enough. There, it was quite consistent with the language used, that there might have been a previous resignation. Lush (who was counsel in the cause) stated that the resignation and the giving of the guarantee were in fact simultaneous acts.] You cannot lay a promise with one qualification, and prove a promise with another. This declaration is so ambiguous that it is impossible for the court to say what the consideration for the defendant's promise was.

Kettle, in reply. The court will so construe this guarantee as to give effect to it, if possible. Non constat that there was any subsisting debt from Baker & Co. to the plaintiffs due at the time the guarantee was given, though there might have been previous transactions between them. The obvious grammatical construction of the instrument is, that the defendant's liability was to commence at the time the iron was received.

JERVIS, C. J. I am of opinion that the plaintiffs in this case are entitled to the judgment of the court. If it were necessary, in deciding this case, to confine our attention to the guarantee itself, I think the authorities cited by Mr. Keating shew that we might, in order to assist us to a right understanding of the words used, look to the extraneous circumstances. I see no difference between receiving parol evidence to explain the meaning of the words "for iron received," in this guarantee, and receiving it to explain the words "having released," in Butcher v. Steuart, and "having advanced," in Goldshede v. Swan. As I understand this case, it is not necessary to refer to any authorities in support of the position for which Steele v. Hoe was cited. It is admitted, that, if the three papers refer to each other, they must be read together. Now, that they do refer to each other, is clear. The last paper is,-"I hereby engage

1851.

COLBOURN

v.

DAWSON.

1851.

COLBOURN

v.

DAWSON.

to guarantee to Messrs. Colbourn the sum of 2001. for
iron received from them for Messrs. Baker, as annexed;"
the meaning of which is, "I, on behalf of Messrs.
Baker, engage to guarantee you for iron supplied to
them, as I have undertaken to do upon the fly-leaf
hereof." The paper so referred to, is, "In reply to
yours of the 24th instant, I beg to say that I have no
objection to become security for Messrs. Baker." Then,
for the purpose of seeing what has induced the defendant
to give the guarantee, we must refer to the letter of the
24th, which is,-"We are doing business with Messrs.
Baker, and we require a guarantee to the amount of
2007., and they refer us to you for one." So that the
result of the whole is this,-" As you are doing business
with Messrs. Baker, and in consideration of your con-
tinuing to do business with them, I guarantee you to the
amount of 2007. for goods received." What is the
meaning of "doing business?" It means doing and
continuing to do business, that is, continuing to supply
goods. If so, that is a good consideration,-In con-
sideration of your doing and continuing to do business
with Messrs. Baker, I guarantee the payment to the
extent of 2001. Then, what is the promise? It is, “I
guarantee the sum of 2001. for iron received," that is,
for goods already supplied, or for goods which may
hereafter be supplied. It is a continuing guarantee in-
volving a liability in respect of both past and future
supplies. In declaring upon such an instrument the
plaintiff is not bound to state the whole promise: it is
enough to say that in consideration of so and so, the
defendant promised to pay him 2001. for goods supplied
or to be supplied: and he is not bound to prove both.
I think there is a good promise alleged, and that the
papers produced would support that promise. I there-
fore think the plaintiffs are entitled to judgment.

CRESSWELL, J. I am of the same opinion. It appears to me, that, if the consideration and the promise are looked at apart from each other, all difficulty vanishes. The letter applying for the guarantee states that the plaintiffs are carrying on business with Messrs. Baker, and that they require a guarantee for 2007. In answer to that, the defendant writes, "In reply to yours of the 24th instant, I beg to say that I have no objection to become security for Messrs. Baker, and subjoin the following memorandum to that effect." That is, in consideration of the letter I have received from you, and the circumstances mentioned in it, I have no objection to be guarantee for them to the amount of 2001. not for any then-existing debt of that amount,not for any particular supply of goods, but generally as a security in your business transactions, to the amount of 2007. What is the promise? "I hereby engage to guarantee to Messrs. Colbourn the sum of 2001. for iron received from them for Messrs. Baker, as annexed,"which probably means, " as I have already mentioned in my letter on the other side." Whether that includes. goods already supplied, or not, seems to me to be quite immaterial: it undoubtedly does include future supplies. I therefore think that there is a sufficient consideration alleged, and a sufficient promise; and that the proof supports the declaration.

WILLIAMS, J. I am of the same opinion. Looking at the three documents, I think it is to be collected from them with convenient certainty, and without doing more violence to the grammatical construction of the language than the authorities warrant, that this was a continuing guarantee to the extent of 200l., and that the declaration is supported.

TALFOURD, J. I am of the same opinion. It must

1851.

COLBOURN

บ.

DAWSON.