Haigh and Another against Brooks
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 119
IN THE COURT OF QUEEN'S BENCH.
S. C. 2 P. & D. 452; 9 L. J. Q. B. 194. See Souch v. Strawbridge, 1846, 2 C. B. 808. Followed, Goldshede v. Swan, 1847, 1 Ex. 160. Adopted, Edwards v. Jones, 1849, 8 C. B. 445; Bainbridge v. Wade, 1850, 16 Q. B. 98; Broom v. Batchelor, 1856, 1 H. & N. 263.
[309] haigh and another against brooks. 1839. Declaration in assumpsit, stating that defendant promised, in consideration that plaintiffs, at his request, would give up to him a certain guarantee of 10,0001. on behalf of L,, then held by plaintiffs. Averment, that plaintiffs gave up the guarantee, but defendant did not perform his promise. Plea, that the guarantee was a promise to answer for the debt of another, and that there was no agreement, &c., in writing, wherein any sufficient consideration was stated (according to stat. 29 Car. 2, c. 3, s. 4). And that the supposed guarantee was contained in the following written memorandum signed by defendant:-"Messrs. H." (the plaintiffs). "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. J. B." Held, by the Court of Queen's Bench, on demurrer, that the words of the guarantee did not necessarily imply a past advance; and that, if they left it even doubtful whether a future advance was not guaranteed, a promise made in consideration of giving it up was valid. But, held, further, that at all events it appeared on the pleadings that the plaintiffs had delivered something to the defendant, on the faith of his promise, which he at the time considered valuable, and this being so, and no fraud imputed, he could not afterwards excuse a breach of the promise, by alleging that the thing given up was not of the value he had supposed. Judgment affirmed on error, by the Court of Exchequer Chamber. Held, by the Court of Error, that the guarantee did not necessarily imply a past advance; and that the plaintiffs, on a trial, might have offered evidence to shew that future advances had been contemplated. Held also, Maule B. dubitante, that the paper on which the guarantee was written appeared by the declaration and plea to have been given up by plaintiffs to defendant; and that this alone was consideration for a promise. Held, by the Court of Queen's Bench, that, on the trial of an issue of fact raising the question whether or not the above guarantee had been delivered up, the guarantee might be given in evidence, though unstamped. [S. C. 2 P. & D. 452 ; 9 L. J. Q. B. 194. See Souch v. Strawbridge, 1846, 2 C. B. 808. Followed, Goldshede v. Swan, 1847, 1 Ex. 160. Adopted, Edwards v. Jones, 1849, 8 C. B. 445; Bainbridge v. Wade, 1850, 16 Q. B. 98; Broom v. Satchelm; 1856, 1 H. & N. 263.] Assumpsit. The first count of the declaration stated that heretofore, to wit on, &c., " in consideration that the said plaintiffs, at the special instance and request of the said defendant, would give up to him a certain guarantee of 10,0001. on behalf of Messrs. John Lees and Son, Manchester, then held by the said plaintiffs, he the said defendant undertook, and then faithfully promised the said plaintiffs, to see certain bills, accepted by the said Messrs. John Lees and Sons, paid at maturity; that is to say, a certain bill of exchange " bearing date, &c., drawn by plaintiffs upon and accepted by the said Lees and Sons, payable three months after date, for 34661. 13s. 7d., and made payable at, &c.: and also a certain other bill, &c.: describing two other 120 HAIGH V. BROOKS 10 AD. 6 B, 810. hills for 3QOQ1. and 32001. drawn by plaintiffs upon and [310] accepted by Lees and Sons, and mada payable at, &c.: averment, that plaintiffs, relying on defendant's said promise, did then, to wit on, &c., "give up to the said defendant the said guarantee of 10,0001." Breach, non-payment of the bills, when they afterwards came to maturity, by Lees and Sons, or the parties at whose houses the bills respectively were made payable, or by defendant, or any other person, &c. Third plea, to the first count: " That the said supposed guarantee of 10,0001., in consideration of the giving up whereof the defendant made such supposed promise and undertaking as therein mentioned,, and which guarantee was so given up to the said defendant as therein mentioned, was a special promise to answer the said plaintiffs for the debt and default of other persons, to wit the said Messrs. John Lees and Sons in the said first count mentioned ; and that no agreement in respect of, or relating to, the said supposed guarantee or special promise, or any memorandum or note thereof, wherein any sufficient consideration for the said guarantee or special promise was stated or shewn, was in writing and signed by the said defendant, or any other parson by him thereunto lawfully authorized. And the said defendant further saith that the said supposed guarantee, in consideration of the giving up whereof the defendatit made the said supposed promise and undertaking in the said first count mentioned, and which was so given up as therein mentioned, was and is contained in a certain memorandum in writing signed by the defendant, and which was and is in the words and figures and to the effect following, that is to say :-' Manchester, 4th February, 1837. Messrs. Haigh and Franceys. Gent.-In consideration of your being [311] in advance to Messrs. John Lees and Sons, in the sum of 10,0001. for the purchase of cotton, I do hereby give you my guarantee for that amount (say 10,0001.), on their behalf.-John Brooks.' And that...
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