The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-05-11
DECISIONS OF THE HIGH COURT
lRportad expressly for the Eastern, Clarion. !
no. sJlqT

ofthree thousand dollars. which might remain un-
paid by them, and that on the 31st August 1885, at
the close Of the business season and Of their business
with Chambers and Standley. they were indebted TO
the plaintiffs in the sum Of - 255 26. the balance un-
paid upon the debt contracted aforesaid II is fur
ther aYerred that the plaintiffs received the said let
ter Of guaranty, about the lst May 1858, and accept
ed the same. Of which the defendant had notice.
The second count is To the effect except that
It does not aver notice Of the acceptance of the guar
anty 10 the defendant and AYERS that Chambers and
STANDBY insolyent the 3lst August. 1850 and
have failed to pay the account due the plaintiffs on
demand.
The objection now urged in support of the demur-
rer ls tnat the declaration does not show that the
written guaranty made upon a sufficient cOnsid-
Grafton 70 be binding in law: and in considering the
objection must Of coursS. look alone TO the
ments Of the declaration without regard 10 the eIi-
dence subsequently developed upon the trial Of the
case before the jury.
The instrument sued on is not set out ia hoe rerJa
in the declaration. nor made part Of it: and the
mentS to its execution that the 2}rd March.
1855. in consideration Of ms previous promise that he
would execute his guaranty to them to secure the
debt which Chambers and Standley contracted with
the plaintiffs, and which they contracted on the faith
Of that promise the defendant made his guaranty
IN writing OF that date directed TO the plaintiffs,
whereby he undertook and promised the plaintiffs
be accountable 70 them for any balance Of the debt so
contracted to the amount Of 5000 &c. The ullec
ton appears to be, that special consideration is
aVerred Tor the execution Of the guaranty. and that
no consideration ~ writing for the same is shown:
and therefore, that the instrument Is invalid under
the Statute Of Frauds.
II the instrument had been executed for pre-
existing debt, which complete before its eNecu-
ton and contracted without any reference to il a.
security which the defendant had agreed give for
the debt, and IN consequence Of which the debt
contracted 10y the original debtors there would Doe
force IN the objection. But according 10 the aver
ments Of the declaration. the original debt Of Cham
bers and Standley contracted with the plaintiffs
upon the defendants promise that he would secure
1t by his guaranty; and after was contracted he
ecuted the guaranty sued on, IN accordance with ms
original agreement. In such il j. clear that
the guaranty forms part OF the original contract br
tween the creditor and the parties with whom he is
no
which the original Indebtedness was founded Where
the guaranty, though collateral is connected with,
and the nducement 10 the original credit or the
suit OF a previous promise upon the faith Of which
the credit obtained by the original debtors, the
guaranty requires no new and independent consider
atluu To give II lorrc. but Is part cf the original
transaction. and the consideration upon which the
original credit was given. Hence such case is not
within the statute-LeouaTd vs. Wandering. John.
r. y; Kents Com. l23: and this appears to be the
character Of the case, a. stated in the declartOn-
The demurrer was, therefore, properly overrued.
The next ground Of error relied on, is the over
ruling Of the motion for new trial. This motion
was based upon several grounds, which We will pro-
ceed to consider.
The first Of these IS, that the court erred in giving
instructions to the jury
The objection to the instructions appears to be,
that the question whether the guaranty sued was in
tended by the maker to cover the debt previously
contracted by Chambers and Standley with the plain
tffs, was not sufficiently submitted to the Jury and
that the instructions for the plaintiffs assumed that
such was the intention Of the defendant in giving the
guaranty.
This view proceeds rather upon a literal and rigid
construction ofthe instructions. than upon their spirit
Though the instructions complained Of are not as
full they might have been in this particular it is
evident, from the whole OF them, that the question
whether the guaranty made with reference to the
original Indebtedness vas sufficiently presented to
the jury.
The next two grounds of the motion in effect
the same-tha the verdict is contrary to evidence;
and in considering this it is necessary 10 take into
by the bill Of exceptions.
Tile principal wines, in behalf Of the plaintiff was
off fha hllrs afa1
Standley who testified, in substance that from mis-
fortunes which befe that firm IN the fall Of the year
lS44 1t without credit in New Orleans. and unable
10 carry on business ana that the witness informed
the defendant who the father Of -tandley, Of
the firm, that they would be compelled to stop bus-
ness-that the defendant objected to their stopping
business and said he would furnish them the neces-
sary credIt-that witness went to New Orleans about
the hrst February 1920, With view % OBTAIN credt
and make purchases in order to continue the busl-
of the firm, and just before he went there that
he defendant in relation TO his making business
arrangement for the firm with some new commission
house in that city. the house with which they had
formerly done business having failed and that the
defendant said that he would give the firm credit IN
that city, and would guaranty the debt he might con
there and that he sent him To procure credit on
that hass-that he accordingly went to New Orleans
ana contracted me u' upon "il,Si 'iils S y
ed. the witness then informing the plaintiffs Of what
had passed between the witness and the defendant
promising the plaintiffs, II they were extended that
the debt should be promptly paid. and that II should
be secured by the guaranty Of the defendant and that
the defendant had promised 10 give the hrm Of Cham
bers and Standley an unlimited letter OF credlt-and
the faith of these assurances that the plaintiffs
gave the credt-that the why the witness did
not take the guaranty with him, was that 1t was not
| then known with what house the arrangement could
be made-that when the credit was obtained, II was
understood between the plaintiffs and the witness
that the witness was to send them defendant guar
anty soon as he got home-that IN few days atei
he returned home about the last of February Is
Of March the plaintiffs sent blank letter of guaranty
for the defendant to sign and in few days theroat
ter that the witness went to the defendants house
| and delivered him the letter Of guaranty for his sig
nature. informing HIM of the arrangement which wit
| ness had made with the plaintiffs. ana OF the credl
| which they had extended to the firm; and that tn,
| defendant expressed no unwilingness to sign tn
paper, hut said as there no ink in the house tina
| he would get some and have it signed by the TIM
witness returned-that witness called on his return
several davs after, and that the defendant gave tn
same reason as before for not having signed IT, bu
said he would 60 10 his son James and sign it an
| send II down in a few days-that some time therea
ter the guaranty sued on was sent by the defendan
10 the house of Chambers and Standley, and was rt
ceived by his partner STANDBY while witness wa
from home; and some days after its receipt that VII
sent il to the plaintiffs at New Orleans. and vii
ness never saw or heard OF any letter accompanyln
it stating that it was only form, and not intended
| be binding the defendant He further stated tina
the defendant always. speaking Of his liabilities 70
Chambers and Standley' during me winter ana sprih
of 1855 and before they stopped business. recognize
the debt sued for as one Of his liabilities.
| On cross examination he stated that he never tol
James Standey' Jr- that he had mo- letter OF credl
and wanted none: that when he went to New Orlean
the firm of Chambers and Standey had no credl
and that the defendant had before given thep cred
with commission houses in New Orleans-that ne
ther the defendant nor James Standley Jr- ever nC
ufed witness not TO send the letter Of credit sued
TO the plaintiffs and that he never told James stand
ley Jr, that he had not sent it. He further state
| that the defendant did not tell hm 70 call on IN
plaintiffs nor upon any particular house Tor credit
| Il was further proved that on the l'th FEBRUARY
1855, the plaintiffs sent 10 Chambers and Staqdey
letter of guaranty be signed 10y the defendant an
returned 10 them IN the following form:
"Messrs. Miles Adams, New Orleans;
| Gents-I hereby agree to guarantee the paymen
| Of all drafts drawn on your house ~ Ness Challper
| q Standlay al S1dpn. Miss AT Oft sprNt.
| And that the guarantee sued on was enclosed p,
Cbambers and Standey. in a letter to the plaintiff
dated 2Sth April 1853 and was received in few day
BLACK Hawk March 23rd. 1855.
| Messrs Miles & Adams New Orleans La.
tient-Your form Of letter Of credit. that yoJ
| wished me to give Mess. Chambers and Standley. a
Sidon, Is before me am disposed to give my nam, name
only on some speclhed amount say ior three uou
sand dollars The above amount / will underwrit,
for the house Of Chambers and Standley at Sidon.
West. the clerk of plaintiffs, testified that the cred
il was given to ChamberS-he gave a verbal promlS,
that he would send to- the plaintiffs the guaranty
the defendant, he could return home
ON the part Of the defendant, James Standey, Jr
testified that he was at the house of the deiendan
some time in March, 1855, and that the defendan
showed witness a letter Of credit for an unlimited
amount sent to defendant by the plaintiffs for IN
signature. and which the defendant refused to sign
that defendant asked witness to draw up form 0
| guaranty for the sum Of 5000, which witness die
and thai the instrument here sued on was the on
| drawn up by him. and signedhy hlm-that atew day
thereafter he learned that the same had been sent
| Chambers and Standley. and fearing that witnes
! might be made liable, he went to see Chambers an
STANDBY. and told Chambers that the instrument ser
| to them by the defendant not signed by the dt
| fendant. but was drawn up bv witneS, as n form
| see if il would answer his purpose, and that the
must not send II To the plaintiffs and that Chamber
said he had not sent it, and would not send It-ths
It would not answer their purpose-hutt that he woul
send down all the cotton he could control-that @
his way to see Chambers and Standley, he stopped
defendants house, and told HIM he going 10 Sc
Chambers and Standley. and that defendant did n,
then send any message IN relation to the guaranty
request HIM 10 stop it from beng sent-that Chan
bers stopped at witnesses house his way 10 Ne
Orleans, and that witness asked him if he had an
letter Of credit to any house, and he replied that
had not. nor did he want any-that defendant did n
tell witness to tell Chambers and STANDBY not
send the plaintiffs the letter here sued on The I,
lowing letter was also in evidence on the part of Il
defendant:
New Orleans Sept. 2eth, 1855.
: Mess Chambers Standley, Sidon. Miss.
6ent.-Encl3sed you Will find your account sho
ing balance due on the lst inst, Of $2255 26 Attl
time your Mr.. Chambers obtained our acceptanc,
! he pledged his honor that they should be met
shipments OF cotton and that the father of your
Standley would guarantee their payment You "
see that they have not been met by shipments Of e
; ton, and Mr. Standley now denies his guaranty. Yo
letter from Mr.. J. Stsndley, saying that he Won
stand Tor $1,000 copy of which is herewith enclose
ON the 18th july Mr. J. Standley writes us, denyl
that he ever wrote such letter How Is this
certainly expect this matter 10 be speedily arrange
Be good enough to let hear from YOU at your ea
g Minis ADAMS"
! The first position taken in behalf OF the plnntln
error, showing the insuthclency OF the eNltehce
support the verdict Is that the instrument oi gara
ty sued on is plainly perspective IN ITS terms haNil
t no reference To any Indebtedness already cohtraet'
. by Chambers and Standley, and that II was not COZ
petent 10 show by paro evidence, that It was nten
ed 20 cover debts contracted before its date
Whilst it is true that the terms used IN the guara
ty would be fully applied to Indebtedness snbsequeI
Il IL 10 he contracted 10y the parties for whom il vi
q owen il is also without violence TO its language N
true spirit susceptible OF the construction that It W
: intended to embrace subsstiue Indebtedness
l. makes refeTenceto the letter Of guaranty transln
- ted TO the defendant by the plaintiffs for eXecutio
which expressly covered drafts then drawn by Char
bers and Standley on the plaintiffs without specific
ton Of the amount-eXpresses his unwillngness
| give his name, except for specific amount-thrt
| thousand doars-and concludes 'the above amour
S will underwrte for the house Of Chambers Stan
e | lev" The only words used showing prospeeu'
| Intention, the words iriH aRder1erite; and II
plain that they do not necessarily exclude an intel
! nnn hAnOIna lAhla for indebtedness Lhen enlals