CHAP. II.

RIGHTS AND LIABILITIES OF VENDOR IN RESPECT OF

SURETIES.

SECTION I. Of the sufficiency of the Agreement, under

66

the Fourth Section of the Statute of Frauds.

must be in

By the Statute of Frauds it is enacted (a), "that Guaranty no action shall be brought whereby to charge the writing. "defendant upon any special promise to answer

"for the debt, default or miscarriage, of another

66

person; unless the agreement upon which such "action shall be brought, or some memorandum "or note thereof, shall be in writing and signed by "the party to be charged therewith, or some other person thereunto by him lawfully authorized."

The first consideration is, what agreements are within the statute;—and the second, what is a sufficient note or memorandum to satisfy the statute.

I. What Agreements are within the Statute.

In general, any promise or agreement which in What agreesubstance amounts to an undertaking to guarantee the statute.

(a) 29 Car. II. c. 3, s. 4.

ment within

Agreement
within

Statute of
Frauds.

the particular debt, or the general solvency, of some third party, is within the meaning of the statute, and void unless in writing (b); whether such promise or agreement stands alone, or is coupled with some other undertaking (c).

Thus, where the vendor has been induced to deliver goods upon credit to the purchaser, on the promise of the defendant made in such words as, "If you do not know him you know me, and I will see you paid" (d); or, "I will pay you if he does

(b) Fish v. Hutchinson, 2 Kenyon, 537, S. C. 2 Wils. 94; Rains v. Storry, 3 C. & P. 130; Barber v. Fox, 1 Stark. N. P. C. 270; Kirkham v. Marter, 2 B. & A. 613; Buckmyr v. Darnall, 2 Ld. Raym. 1085. Under the new Rules of Pleading (Hil. T. 4 Will. IV.) the absence of a sufficient written memorandum, in an action on a guaranty, must be specially pleaded; (see Barnett v. Glossop, 1 Bingh. N. S. 633, which was an action on the assignment of a copyright;) even formerly such defence might have been pleaded specially, though admissible under the general issue; Maggs v. Ames, 1 M. & Payne, 294; S. C. 4 Bingh. 470. It has been said that the replication to such plea should not take issue merely, but ought to set out the written agreement; Lowe v. Eldred, 1 Cr. & Mees. 239: See 4 B. & A. 596. But the opinion does not seem well founded; and in a very recent case a contrary opinion was intimated; Wakeman v. Sutton, 2 Ad. & Ell. 78. See Lysaght v. Walker, 5 Bligh, N. S. 1, 25; Lilley v. Hewitt, 11 Price, 494.

(c) Chater v. Beckett, 7 T. R. 201. A written agreement to guarantee payment for goods, is exempted from the usual agreement stamp, as "relating to the sale of goods, wares, and merchandise;" Warrington v. Furbor, 8 East, 242; Watkins v. Vince, 2 Stark. N. P. C. 368; Curry v. Edensor, 3 T. R. 524: Supra, p. 219.

(d) Matson v. Wharam, 2 T. R. 80.

within

Frauds.

not" (e); or, "I will be bound for the payment as Agreement far as £- -"(f), the promise is a guaranty within Statute of the statute. And it is immaterial whether the promise was made before or after the delivery of the goods (g).

defendant

primarily.

between

collateral

Thus, undertak

Where the agreement is a collateral undertaking When the within the statute, the defendant, necessarily, does is liable not become primarily liable, but only guarantees the payment in the event of the purchaser making default (h). But if the defendant has made himself Distinction liable in the first instance on his undertaking, such original and undertaking is not within the statute. where the original credit was given to the defendant himself (i), or, where by the express words of his undertaking the defendant has bound himself in the first instance, and not conditionally on the default of another (k), he will be primarily liable. So, where the original purchaser, being unable to pay for the goods, transferred them to the defend

(e) Peckham v. Faria, 3 Dougl. 13.

(f) Anderson v. Hayman, 1 H. Bl. 121.

(g) Jones v. Cooper, Cowp. 227; S. C. Lofft, 769. See 2 T. R. 80; Parsons v. Walter, 3 Dougl. 13, n.

(h) Rains v. Storry, 3 C. & P. 130; Mines v. Sculthorpe, 2 Campb. 215.

(i) Darnell v. Fealt, 2 C. & P. 82; Simpson v. Penton, 2 Cr. & Mees. 430; Croft v. Smallwood, 1 Esp. 121; Keate v. Temple, 1 B. & P. 158. Supra, p. 246, 7.

(k). Dixon v. Hatfield, 10 B. Moore, 42; S. C. 2 Bingh. 439; Redhead v. Cator, 1 Stark. N. P. C. 14; Taylor v. Hilary, 5 Tyrwh. 373.

ing.

Agreement ant, a promise by the latter to pay the price was

within

Statute of held to be an original undertaking, and not a

Frauds.

promise within the statute to pay the debt of another (1).

Again, where the undertaking to pay the debt is conditional, not on the default of the party from whom the debt is due, but, on some other event, such as to furnish a good consideration moving from the plaintiff to the defendant, this is not a guaranty within the statute, but an original undertaking (m). Thus, where the promise to pay was, in consideration that plaintiff would abandon his lien on the goods in his hands (n); or, that he would forego the exercise of some right which he possesses, such as a right to sell under a bill of sale (o), or a right to distrain (p);—the undertaking is not within the statute. On this principle, an undertaking by the defendant to pay a debt due to the plaintiff from a third party to whom the defendant is himself indebted, in consideration that such debt due from the defendant shall be deemed

(1) Browning v. Stallard, 5 Taunt. 450; Oldfield v. Lowe, 9 B. & C. 73.

(m) See Anstey v. Marden, 1 N. R. 124; Read v. Nash, 1 Wils. 305; Bampton v. Paulin, 4 Bingh. 264.

(n) Houlditch v. Milne, 3 Esp. 86; Castling v. Aubert, 2 East, 325. See Walker v. Taylor, 6 C. & P. 752.

(o) Barrell v. Trussell, 4 Taunt. 117.

(p) Williams v. Leper, 3 Burr. 1806; S. C. 2 Wils. 302.

to be thereby satisfied, is an original and not a Agreement

collateral undertaking (9).

II. What is a sufficient memorandum or note of the Agreement, within the Statute.

66

within Statute of Frauds.

"the Sufficiency

of the writ

According to the words of the statute, agreement, or some memorandum or note there- ten note. "of" must be " in writing, and signed by the party "to be charged therewith, or some other person "thereunto by him lawfully authorized" (r). The words here used are similar in substance to the provisions of the 17th section, which requires a note or memorandum in writing, to support a contract for the sale of goods in certain cases. Therefore, in reference to the sufficiency of the writing evidencing the agreement, the law is similar in both sections; and the cases which have been above cited on the 17th section may be referred to in relation to the present subject (s).

(q) Lacy v. M'Neile, 4 D. & R. 7; Hodgson v. Anderson, 3 B. & C. 842. For this is not an agreement to pay the debt of another person, or to pay a sum of money which defendant was not liable for in law, but an agreement to pay his own debt in a particular manner. See 3 B. & C. 856.

(r) Supra, p. 377. The signature by a clerk of the plaintiff in the presence of the defendant will not bind the latter; Dixon v. Broomfield, 2 Chit. Rep. 205. See above, p. 78.

(s) Vid. supra, Book I. Chap. iii. Part 1. (p. 50.) The words of the 17th section 66 are, except some note or memo"randum in writing of the said bargain be made and signed by "the parties to be charged by such contract, or their agents "thereunto lawfully authorized." Of the form and contents of the note, see pp. 67-72. Of the signature by the parties, pp. 72-74. Of the signature by procuration, pp. 74-78.