Florence v Jenings
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1857 |
| Date | 12 June 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 494
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 26 L. J. C. P. 274. 3 Jur. N. S. 772. See Ex parte Fewings, 1883, 25 Ch. D. 350; Usborne v. Limerick Market Trustees, [1900] 1 I. R. 107; [1901] 1 I. R. 530; [1902] A. C. 147 (sum nom. Economic Life Assurance Society v. Usborne).
[454] florence v. jenings. June 12th, 1857. [S. C. 26 L. J. C. P. 274; 3 Jur. N. S. 772. See Exparte Fewings, 1883, 25 Ch. D. 350; Usborne v. Limerick Market Trustees, [1900] 1 I. B. 107; [1901] 1 I. B. 530; [1902] A. C. 147 (sub nom. Economic.Life Assurance Society v.Vsborne).] The plaintiff discounted for the defendant a bill for 2501., drawn by the latter upon one A., the defendant and A, at the same time signing the following memorandum, addressed to the plaintiff:-"Sir,-In consideration of your discounting the undermentioned bill, we do hereby jointly and severally undertake, if the same is not wholly paid at maturity, to pay, as interest thereon, 201. for each month any portion of which shall have elapsed after maturity of the said bill, and until the same is wholly paid and satisfied." At the foot of this memorandum was written, "2501. Jenings on A., at three months."-^The bill not having been paid at maturity, the plaintiff sued the defendant thereon, claiming by the particulars indorsed on the writ interest at the rate of 201. per month, as per agreement, but declaring only on the bill, and obtained a verdict and judgment thereon.-The plaintiff afterwards brought another action against the defendant upon the agreement for the stipulated interest of 201. per month :-Held, that the former judgment was no answer to the plaintiff's claim for interest accruing before the recovery of such judgment, but that the plaintiff was not entitled to recover in the second action interest accruing since. This was an action upon a special agreement. The declaration stated that theretofore, to wit, on the 3rd of March, 18553 in consideration that the plaintiff, at the 2 C.B.(N. S.)455. FLORENCE V. JENINGS request of the defendant, would discount for the defendant a certain bill of exchange for 2501. drawn by the defendant on and accepted by W. A. D'Arcy, and dated the 3rd of March, 1855, and payable three months after date, the defendant promised the plaintiff, if the said bill was not wholly paid at maturity, to pay the plaintiff, as interest thereon, the sum of 201. for each month any portion of which should have elapsed after maturity of the said bill and until the same should be wholly paid and satisfied ; that, relying on the said promise, the plaintiff did then discount for the defendant the said bill; that the said bill was not wholly paid at maturity, but was duly presented for payment and dishonoured,-whereof the defendant had due notice; that divers, to wit, twelve months and part of another month elapsed after the maturity of the said bill, and before th& same-was wholly paid, and before this suit; that all things on the plaintiffs part necessary to be done and to happen to entitle him to be paid by the defendant the said 201. per month for the said months, were done and happened ; and that the time for the defendant to pay the said 201. per month for the said months had elapsed [455] before this suit; yet that the defendant had not paid the said 201. per month, or any part thereof, and the said 201. per month for the said months, amounting to a large sum, to wit, 2601., ;StiH remained wholly due and unpaid to the plaintiff: and the plaintiff claimed 2601. The defendant pleaded,-first, that the promise mentioned in the declaration is a promise contained in a memorandum in writing, signed by the defendant, and addressed to the plaintiff, as follows, that is to say,-"London, 3rd March, 1855. Mr. J. H. Florence. Sir,-In consideration of your discounting the under-mentioned bill, we do hereby jointly and severally undertake if the same is not wholly paid at maturity, to pay, as interest thereon, 201. for each month any portion of which shall have elapsed after maturity of the said bill and until the same is wholly paid and" satisfied. W. A. D'Arcy. G. B. Jenings. 2501. Jenings on D'Arcy, at 3 m.d.": That he, the defendant, never made any such promise as mentioned in the declaration, other than the promise contained in the said memorandum : That, after the making of the said contract, and after the breach thereof by the defendant, and before this suit, to wit on the 19th of June, 1855, the plaintiff caused to be issued out of this court a certain writ of summons against the now defendant, dated on the day and year last aforesaid, and in the form provided by the Common Law Procedure Act, 1852, and commanding the now defendant, within eight days after the service of that writ upon him, inclusive of the day of such service, to cause an appearance to be entered for him in this court in an action at the suit of the now plaintiff, which writ was specially indorsed pursuant to the said act; and the particulars of the plaintiff's claim in the said action indorsed on the said writ are as follows, that is to say,-"The following are the particulars of plaintiff's claim. 2501. on a bill of exchange for 2501., dated the 3rd of [456] March, 1855, drawn by the defendant. The plaintiff also claims interest on the above sum at the rate of 201. per month, or for any part of a month, as per agreement:" That the bill of exchange mentioned in the said special indorsement was the same bill of...
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