#### Beers, Booth & St. John v. Spooner and Another.

January, 1838,

Richmond.

(Absent Cabell and Bbockehbrottgh, J.)

Contract of Guarantee — No Consideration* — Effect.—A. by contract in writing not sealed, guaranties payment to B. of a debt due him from a third person; no consideration for the guaranty is expressed in the contract, and none is shewn in proof : Held, A. is not bound by such guaranty.

Attorney and Client — Directions to Attorney to Pay Money to Third Person — Revocation.†—A. having claims in the hands of an attorney for collection, gives him a verbal direction to pay part of the money when collected to B. in satisfaction of a debt due B. from a third person : Held, A. in his lifetime, or his adm’r after his death, may revoke this direction to the attorney, and demand the money.

Chancery Practice — Interpleader—Costs.—s. files a bill of interpleader against A. and B. in order that it may be litigated and determined between them which is entitled to a sum of money in S.’s hands; and the bill is filed in consequence of a demand made on S. by B. for the money; the court holding that A. was entitled to the money in question, decreed that B. should pay A. his costs of suit; and decree affirmed.

This was a bill of interpleader, exhibited by Spooner in the circuit superiour court of Petersburg, stating, that he was the attorney of Joseph Dudley prosecuting a suit for him for the recovery of a debt, and that Dudley, pending *the suit, verbally authorized and directed him, out of the money he should collect in that suit, to pay Beers, Booth & St. John (merchants and partners) about 300 dollars. That Dudley afterwards died; and Edward Archer was his administrator. That Spooner had collected in the suit he had prosecuted for Dudley, more than was sufficient to pay Beers, Booth & St. John the money Dudley had directed him to pay them ; but Archer, the administrator, had forbidden the payment. That both parties demanded the money; and Archer threatened to move against him for refusing to pay money collected as an attorney. Being thus exposed to conflicting demands, and being liable to be sued by one or the other party, however he should act, he prayed that the parties should be compelled to interplead, and that *65the court should decide to whom the money should be paid &c.

Beers, Booth & St. John answered, that they had received a note of one John R. Archer for 300 dollars, which not having been paid at maturity, he gave them another note for 500 dollars, which they were to hold as collateral security for the payment of the 300 dollars due on the former note; but the note for 500 dollars was, at its maturity, protested for nonpayment. That afterwards, Dudley entered into a written agreement with Beers, Booth & St. John, whereby he guarantied the payment of the said debt of 300 dollars. That Dudley represented, that Spooner had claims belonging to him in his hands for collection ; and proposed, that he would order Spooner to pay, out of the first money he should collect, the amount thus due from Dudley to Beers, Booth & St. John. That Booth assenting to this proposal, he and Dudley went together to Spooner, and Dudley directed Spooner to pay Beers, Booth & St. John the amount in question, out of the first money he should collect; Spooner promised both Dudley and Booth, that he would do so; and Booth, confiding in Dudley and Spooner, did *not require a written order. The answer concluded with a prayer, that Spooner should be decreed to pay the money in question to Beers, Booth & St. John.

Archer, the administrator of Dudley, answered, that he was ignorant of all the facts alleged in the bill, and especially of the alleged order or transfer by Dudley of the money to be collected by Spooner to Beers, Booth & St. John. He said, it nowise appeared, that Dudley was under any kind of obligation to pay Beers, Booth & St. John the money due them by John R. Archer: that the conversation between Dudley, Booth and Spooner, granting that such conversation did take place as represented, did not amount to an assignment of Dudley’s funds in Spooner’s hands to Beers, Booth & St. John: and that, notwithstanding that conversation, he as the administrator of Dudley was entitled to the whole amount collected by Spooner.

Dudley’s guaranty mentioned in the answer of Beers, Booth & St. John, was exhibited, and was in these words: “I hereby guaranty to Beers, Booth & St. John 300 dollars due to them by J. R. Archer, and on which they (B. B. & St. J.) hold R. P. Archer’s note in favour of W. B. Giles, and by him indorsed and by J. R. Archer, dated 20th May 1828, at 60 days, for 500 dollars, and which was protested when due, and now remains unpaid. And should B. B. & St. J. not be able to collect their money (300 dollars and interest) out of said note, I hereby bind myself to pay the same in twelve months from this date. Petersburg, 22nd October 1828. (Signed) Joseph Dudley.” What was the consideration on which Dudley gave this guaranty, was not stated in the answer, and nowise appeared ; and how he was implicated in the protested notes therein mentioned, or at all connected with that transaction, was left wholly unexplained.

The cause was heard, by consent, on the bill, the answers, and Dudley’s contract of guaranty: and the court decreed, that Spooner should pay the money he *had collected to Archer, the administrator of Dudley ; and, as it appeared that this suit was brought by Spooner, in consequence of the demand of the money of him by Beers, Booth & St. John, the court also decreed that they should pay Archer his costs of suit. Beers, Booth & St. John applied by petition to this court for an appeal; which was allowed.

The cause was argued here, by Allison for the appellants, and Macfarland for the appellee Archer,

upon two questions; 1. whether the decree was right in directing the money to be paid to Archer ; and 2. whether it was right in giving Archer his costs against Beers, Booth & St. John ?

*

Promise to Pay Debt of Another — Consideration.— The promise of one person to pay the debt of another, though in writing, must be founded on a consideration to make it binding. Winkler v. C. & O. R. Co., 12 W. Va. 707, citing principal case; Colgin v. Henley, 6 Leigh 85; Moseley v. Jones, 5 Munf. 23.

The principal case, Parker v. Carter, *4*Munf. 273,. and Colgin v. Henley, 6 Leigh 85, were cited in Winkler v. C. & O. R. Co., 12 W. Va. 707, 708, as authority for the proposition that, though a special count shows a consideration for the contract of one person to guarantee payment of the debt of another, yet, if it does not allege that the other has not paid the debt, it is fatally defective.

†

Attorney and Client — Directions to Attorney to Pay Money to Third Person — Revocation.—In Smith v. Lamberts, 7 Gratt. 138, 148, 149, an attorney at law,, receiving a claim for collection, brought suit upon it and obtained a judgment. The debtor then placed in his hands a note due from a third person authorizing him to collect the note and apply the proceeds to the payment of the judgment. Upon the authority of the principles declared in *Beers d. Spooner,*it was held that this was an irrevocable appropriation by the debtor of the fund arising from the collection of the note to the payment of the judgment.

TUCKER, P.

There is no evidence in this case, but Dudley’s contract of guaranty ; for as to the bill of interpleader, which it was contended was evidence, there is no pretence for so considering it. The case then is clearly against the claimants, Beers, Booth & St. John, since the answer of Dudley’s administrator admits nothing. More need not be said : yet I will add, that taking the facts to be as stated in the answer of Beers, Booth & St. John, they had no title to recover. Eor the guaranty itself appearing to be without consideration, and having been subsequent to the contraction of the debt, and without any promise of extended credit, it was void, and Dudley was under no obligation to fulfil the engagement it implied. The guaranty may, therefore, be thrown out of the case ; and then it is the naked case of a man directing another verbally to pay the debt of a third person out of his funds, without consideration. Such direction is void ; and though, if complied with before countermand, the parly could not complain, yet it may be countermanded at any time. Had Spooner paid over the money to Beers, Booth & St. John, or had he so far bound himself to them in consequence of the*order, as to be irrevocably fixed for the debt to them, the payment would have been valid against Dudley. But having never paid, or bound himself to pay, Dudley had in his lifetime, and his administrator now has, full power to retract.

If Dudley had been bound for the debt, and had directed Spooner to pay, there would be more reason to regard the direction as irrevocable ; particularly if Spooner had promised payment to the creditor. Then it would have resembled the case of Sharpless v. Welsh, 4 Dall. 279. There, the person giving the direction was the actual debtor, and the person receiving it made an express promise to apply the fund as directed : here, the party was no debtor, and there was no promise. There, the court held, that the debtor had made an appropriation of his funds to pay his debts to his creditors, which appropriation he could not revoke : here, he directs an appropriation, without consideration, to pay the debt of another, over which direction he had a complete power of revocation, until *66the money was actually paid. That has never yet been done.

The other judges concurred. Decree affirmed.