Lee v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1864 |
| Date | 01 January 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 496
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 17 C. B. (N. S.) 482.
START 496' LEE V. JONES 14 C. B. (N. 3.) 387. : lee and another v. jones. April 15th, 1863. [jAffirmed in Exchequer Chamber, 17 C. B. (N. S.) 482.] Ona|P. had been employed by the plaintiffs in the sale of coals for them on commission, for which he at the end of each month gave them his acceptances, and by the terms of his agreement he was to hand over to them within six days all moneys he received from customers. P. having fallen in arrear to the extent of 12721., the plaintiffs required him to find security to the amount of 3001., and at his request the defendant consented to guarantee 1001. The agreement of guarantee recited the terms of dealing between the plaintiffs and P. ; but the fact that P. was already indebted to the plaintiffs in the large sum above mentioned was concealed from the sureties. -In an action against the defendant on the agreement, he pleaded that he was induced to make it by the fraudulent concealment by the plaintiffs of a material fact:-Held, that the non-communication by the plaintiffs to the defendant of the fact that P. was at the time indebted to them, was evidence for the jury in support of the plea. This was an action brought by the plaintiffs, who carry on the business of coal-merchante, against the defendant, to recover 1001., the amount for which he agreed to become surety to them for one James Packer, a person employed to sell coals on commission for the plaintiffs. that James The declaration stated that, by a certain agreement,-after Packer had for some time then past been a salesman of coals upon commis-[387]-sion for the plaintiffs, he the said James Packer giving bills of exchange to the plaintiffs for all such coals as might be delivered to his order, such bills being floating bills, to be settled for and paid up at the expiration of the current months during which such bills were respectively running; and after reciting that the plaintiffs requiring security from the said James Packer, they stipulated, amongst other things, that N. 0. Sendall, G, Theobald, J. G-. Antrobus, the defendant, and H. W. Ruel, should give them the plaintiffs a floating and continuing guarantee for the term of three years from the date of the said agreement, on behalf of the said James Packer, to secure to them the said plaintiffs the amount of any balance which might at any time or times be due to them the plaintiffs from the said James Packer upon any such coal account or bills, to the amount of 3001., in the proportions following [the defendant in the sum of 1001., and each of the other sureties in the sum of 501.], making together the said sum of 3001.; and, in order to induce the plaintiffs to continue the said arrangement with the said James Packer, the said N. C. Sendall, G. Theobald, J. G. Antrobus, the defendant, and H. W. Euel, agreed to enter into the said agreement for guarantee in manner thereinafter appearing,-they the said N. C. Sendall, G. Theobald, J. G. Antrobus, the defendant, and H. W. Ruel, in consideration that the plaintiffs would continue for n*ore than one month then next to allow to the said James Packer a certain commission upon the saU of coals referred to in an agreement between the said James Packer and the plaintiffs, bearing date the 1st of November, 1856, and would not for the said month terminate and put an end to the agreement, severally and respectively guaranteed, promised, and agreed to and with the plaintiffs that they the said N. C. Sendall, G. Theobald, J. G. Antrobus, the [388] defendant, and H. W. Ruel, should and would severally pay and make good, in the respective portions hereinbefore mentioned, to the plaintiffs or their executors, administrators, or assigns, all such sum and sums of money as might be due and owing to them the plaintiffs at any time or times during the said term of three years from the said James Packer in relation to the said agreement or bills of exchange, not exceeding in the whole the said sum of 3001,, such guarantee to be a continuing guarantee and to be made good at any time by the said N. C. Sendall, G. Theobald, J. G. Antrobus, the defendant, and JL W. Ruel, for any balance or amount due to the plaintiffs in respect of the said f reement Between the said James Parker and the plaintiffs during the said tertti of ree yaarsi: And by the said agreement it was declared by the said N. C.' Sendall, Theobald, J. G. Antrobus, the defendant, and H. W. Ruel, that giving time to the aaid James Packer by the plaintiffs for the payment of any account or balance at any time should; not invalidate the said guarantee, but that they should at all times have it in their full power and discretion so to do, or to make any compromise or arrange- 14 C. B. (N. S.J389. LEE I'. JONES 497 ment that they might deem beneficial with the said James Packer, find that they the said N. C. Sendall, G. Theobald, J. G. Antrobus, the defendant, and H. W. Ruel, their executors or administrators, should remain liable to make good any balance or sum remainiiig due from the said James Packer to the said plaintiffs, notwithstanding such time so given or such compromise or arrangement as aforesaid; and, further, that, as between them the said N. C. Sendall, (Jr. Theobald, J. (i. Antrobus, the defendant, and H. W. Kuel and the plaintiffs, any accounts stated between them and the said James Packer, or the account-books of the latter used by them in their regular course of business, should be [389] taken as conclusive evidence against the said N". C. Sendall, C4. Theobald, J. (J. Antrobus, the defendant, and H. W. Ruel, their executors or administrators, cither at law or in equity, of the amount of balance or balances due to them on the said agreement by the said Jamas Packer: And it was by the said agreement further agreed and declared by and between the said parties thereto, that the said agreement was to be taken and considered as supplemental and in addition to an agreement bearing date the 1st of November, 185(J, made between Sarah Tinson of the one part, and the plaintiffs and their late partner of the other part: Averment, that the plaintiffs, confiding in the said promise and agreement of the defendant, for more than one calendar month after the making of the said agreement did continue and agree to allow to the said James Packer the said commission upon the sale of the said coals referred to in the said agreement between the said James Packer and the plaintiffs, and did not during or in the said month terminate or put an end to the said last-mentioned agreement, as they might have done ; and that afterwards, and within the said term of three years, there became due and payable and owing in. relation to and in respect of the said agreement, from the said James Packer to the plaintiffs a large sum of money, such sum being due and payable as aforesaid by the said James Packer in respect of the said ooal account; that the defendant's said proportion of the said sum of money amounted to a large sum of money; that, before and at the time of the making of the said promise by the defendant, and from thence and during all the time aforesaid, the plaintiffs had the power to terminate and put ail end to the said agreement between them the plaintiffs ami the aaid James Packer by the said plaintiffs giving one month's notice to the said James Packer of [390] their the plaintiffs' desire to terminate and put an end to the same; that, before the commencement of this suit, all things had happened and occurred and all times had elapsed which it was necessary should occur, happen, and elapse to entitle the plaintiff to sue in this action for the defendant's breach hereinafter mentioned of the said promise ; and that the plaintiffs had always been ready and willing to do all things which it was necessary they should be ready and willing to do to entitle them to sue the defendant in this action for the said breach of promise, and nothing had happened or occurred to prevent the plaintiffs suing in this action for the said breach of promise; yet that the defendant broke his said promise, and had not paid or made good to the plaintiff's the said proportion of the said sum of money so due and owing as aforesaid from the said James Packer to the plaintiffs, which he the defendant agreed to pay and make good by his said promise, or any part thereof; whereby the said sum and every part thereof became wholly lost to the plaintiffs. The defendant pleaded,-first, that he did not agree as alleged,-secondly, that the supposed agreement and promise was obtained from him by the plaintiffs by the fraud of the plaintiffs, and by their fraudulent arid undue concealment of material facts within their knowledge respecting the said James Packer, material to be made known by them to the defendant before he entered into the said agreement. Issue thereon. The cause was tried before Erie, C. J., at the sittings at Westminster after last Michaelmas Term. The facts which appeared in evidence were as follows :-One James Packer had been employed by the plaintiffs to sell coals for them on commission, under an agreement bearing date the 1st of November, 1856, under which he was to give his acceptances for the [391] amount of all coals sold by him each month, and to account for and pay over to the plaintiffs as their agent all the moneys received by him, within six days after the receipt thereof by him : and for the due performance of that agreement one Sarah Tinson entered into a guarantee to the extent of 3001., terminable on one month's notice. Packer continued in the employment of the plaintiffs down to the month of September, 1801. At this time he was iti arrear with his payments to the extent of I'2721.; and, the plaintiffs requiring further security, he 498 LBE V.JONES 14 C. B. (N. S.) 392. procured the defendant...
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