2 Birkmyr v. Darnell, 1 Salk. 27.
3 Brady v. Sackrider, 1 Sandf. 514.
4 Keate v. Temple, 1 B. & P. 158. See D'Wolf v. Rabaud, 1 Pet. 476; Lane v. Burghart, 1 Q. B. 933; Goodman v. Chase, 1 B. & Ald. 297; Bushell v. Beavan, 1 Bing. N. C. 103; Simpson v. Penton, 2 Cromp. & Mees. 430. In this case Mr. Baron Bayley said: " I think that the expressions, 'I'll be answerable,' and 'I'll see you paid,' are equivocal expressions. And then we ought to look to the circumstances, to see what the contract between the parties was. I do not say that without authority; for there was a case, which, I believe, will be found in the 2d volume of Douglas, in which the Court of King's Bench said that a contract might be collateral or not, according to circumstances, and that it depends on the circumstances whether it is collateral or not. It was the case of Oldham v. Allen, and was decided in Michaelmas term, in the 21th of Geo. III. There the defendant had sent for a farrier to attend some horses, and said to the farrier, ' I will see you paid.' The plaintiff knew the parties who were owners of some of the horses, and made them debtors, but debited the defendant for the others, whose owners he did not know. The court held that the promise was original in respect of those owners whose names he did not know, but, in respect of the others whom he did know, that it was collateral." See, also, Dixon v. Hatfield, 10 Moore, 42; 2 Bing. 439; Andrews v. Smith, 2 Cromp., M. & R. 627; Sweeting v. Asplin, 7 M. & W. 173; Stanly v. Hendricks, 13 Ired. 86; Blount v. Hawkins, 19 Ala. 100; Tindal v. Touchberry, 3 Strobh. 177; Hopkins v. Richardson, 9 Grattan,485; Flanders v. Crolius, 1 Duer, 206; Sinclair v. Richardson, 12 Vt. 33.
1 Vogel v. Melms, 31 Wis. 306, 311 (1872), Cole, J. See Mount-stephen v. Lakeman, Law R. 7 Q. B. 196 (1871), reversing s. c. Law R. 5 Q. B. 613.
2 Redhead v. Cator, 1 Stark. 14; s. c. 4 Camp. 188; Stead v. Liddard, 8 Moore, 2; s. c. 1 Bing. 196; Sandilands v. Marsh, 2 B. & Ald. 680; Coe v. Duffield, 7 Moore, 252; Jackson v. Lowe, 7 Moore, 219; Hemming v. Perry, 2 M. & P. 375; Hare v. Rickards, 5 M. & P. 35; s. c. 7 Bing. 254; Emmott v. Kearns, 5 Bing. N. C. 559; 7 Scott, 687.
3 This construction was unknown until the case of Wain v. Warlters, 5 East, 10, in which Lord Ellenborough first established the rule. The term "agreement" had, before then, been construed according to its popular signification; but in view of the known accuracy of Sir Matthew Hale, who was supposed to have drawn the statute, he concluded that the legal signification of the term must have been intended, and that it therefore included both promise and consideration. Since this case, the doctrine, though questioned in Egerton v. Mathews, 6 East, 307, has been recognized and supported by all subsequent authority. See Jenkins v. Reynolds, 3 Brod. & Bing. 14; s. c. 6 Moore, 86; Stadt v. Lill, 9 East, 348; Lyon v. Lamb, cited in Fell on Guaranties, Appendix, No. 3; Morley v. Boothby, 3 Bing. 107; Cole v. Dyer, 1 Cr. & Jerv. 461; Hawes v. Armstrong, 1 Bing. N. C. 761; Clancy v. Piggott, 2 Ad. & El. 473; Ellis v. Levy, 1 Scott, 669, n. (a). De Ridder v. Schermerhorn, 10 Barb. 640. The rule has not, however, met with thorough approbation in England, and has been looked upon as of doubtful policy and propriety. Lord Eldon said, in Ex parte Gardom, 15 Ves. 286, " Until that case [Wain v. Warlters] was decided, some time ago, I had always taken the law to be clear that, if a man agreed, in writing, to pay the debt of another, it was not necessary that the consideration should appear on the face of the writing." See, also, Morris v. Stacey, Holt, N. P. 153; Theobald on following form: "1843, June 28th, Mr. Price, I will see you paid for £5 or £10 worth of leather on the 6th of Dec. for Thomas Lewis, shoemaker: Robert Richardson," it was held that the consideration did not sufficiently appear.1 It is not necessary, however, that the exact consideration should be expressly stated, provided a good and valuable consideration can be gathered from the whole agreement.2 This construction has also been adopted in New York,3 and in New Hampshire,4 and in South Carolina.6 But the courts in Massachusetts have construed the term according to its popular signification, instead of its legal one, and only require that the promise should be set forth in writing.1 This latter doctrine seems to be better founded in common sense and in good policy than the English rule.
Princip. and Surety, 10, note b: Newbery v. Armstrong, 1 Mood. & Malk. 391. It appears, also, by the case of Ash v. Abdy, 3 Swanst. 664, that the Statute of Frauds, so far from having been drawn by Sir Matthew Hale, was a mere piece of patchwork. It was originally introduced into the House of Lords by Lord Nottingham, and was there altered by both judges and civilians, and thus arrived at its present form. Lord Ellen-borough's reasoning is, therefore, founded upon an incorrect supposition; and the actual history of the statute shows, pretty conclusively, that it was either an oversight or that the term "agreement" was used in its ordinary and popular sense. Lord Ellenborough himself decided, in Egerton v. Matthews, 6 East, 307, that a contract for the sale of goods was valid, although it expressed no consideration on the face of it; and this was decided in the face of the seventeenth section of the statute, requiring a memorandum of every "bargain," for the sale of goods. Surely the same reasoning which he employs to prove that "agreement" means mutual assent, applies with double force to the term "bargain." As to the policy of the construction, as given by Lord Ellenborough, all that need be said is, that it, in fact, nullifies four out of five of all the bond fide guaranties, given in the course of commercial transactions, and annihilates security given and received in good faith, without conferring any corresponding benefit. The object of the statute evidently was to secure evidence of the promise, rather than of the consideration, which may easily be proved in most cases, and which is, primā facie, proved by the fact of the promise itself.
1 Price v. Richardson, 15 M. & W. 539.
2 Union Bank v. Coster, 1 Sandf. 565; Allen v. Jaquish, 21 Wend. 628; Chapman v. Sutton, 3 Dowl. & Lowndes, 646; Boyd v. Moyle, 2 C. B. 644.
3 Sears v. Brink, 3 Johns. 210; Leonard v. Vredenburg, 8 Johns. 29; D'Wolf v. Rabaud, 1 Pet. 476; Hunt v. Brown, 5 Hill, 145; Manrow v. Durham, 3 Hill, 584; Union Bank v. Coster, 1 Sandf. 565; Allen v. Jaquish, 21 Wend. 628.
4 Neelson v. Sanborne, 2 X. H. 414.
5 Stephens v. Winn, 2 Xott & McCord, 372, n.
§ 1117. Whenever it is necessary that a consideration should be expressly stated in the memorandum, it will be sufficient, provided that it can fairly and reasonably be collected and distinctly implied from the terms of the memorandum.2 But it must be so referred to that it can be inferred with certainty, and not as a matter of conjecture, however plausible the conjecture might be in the particular case. Indeed, it must be so implied that any person of ordinary capacity would understand what the consideration actually is.3 If the name of the guarantor appear definitely in any part of the memorandum, so as to identify him, it will be a sufficient signing to satisfy the terms of the statute.4 So, also, it is not necessary that the name of the guarantee should appear; and the guaranty may be general, in relation to all or any persons furnishing goods or giving credit on faith of such guaranty.5
§ 1118. It is not indispensable that a guaranty should be addressed to a particular person, or be given as a security to a particular person. It may be general, as a general letter of credit, and designed as a circulating guaranty in favor of any person who shall advance money or goods upon the faith thereof.1 In such a case any person may avail himself of the security thus held out, by giving notice to the guarantor, within a reasonable time, that he has accepted the guaranty, and acted upon it; and the guarantor will be bound for all advances made on the credit thereof.2 In general cases, the guarantee should be careful to give notice of his acceptance of any offer or tender of guaranty, for without his final consent to any proposal to become responsible to him for a debt, the guaranty does not become consummated so as to be binding on the offerer. Thus, where A. wrote to B., "As I understand Messrs. Anderson & Co. have given you an order for rigging, etc, which will amount to about £4,000, I can assure you, from what I know of their honor and probity, that you will be perfectly safe in crediting them to that amount; indeed, I have no objection to guarantee you against any loss from giving them this credit," it was held to be only an offer or proposition of guaranty, which B. was bound to have accepted, if he intended to rely on it.8
1 This construction is confirmed by the Revised Statutes of Massachusetts, ch. 74, § 2, and also by Maine, New Jersey, North Carolina, and Connecticut. Lent v. Padelford, 10 Mass. 230; Packard v. Richardson, 17 Mass. 122; Levy v. Merrill, 4 Greenl. 180; Sage v. Wilcox, 6 Conn. 81; Miller v. Irvine, 1 Dev. & Bat. 103; Buckley v. Beardslee, 2 South. 570. In Virginia and Tennessee the word "promise" has been employed in the statute in the place of "agreement." Violett v. Patton,
5 Cranch, 142; Taylor v. Ross, 3 Yerg. 330. See, also, D'Wolf v. Rabaud, 1 Pet. 499.
2 Bell v. Bruen, 1 How. 169; James v. Williams, 5 B. & Ad. 1109; Newbery v. Armstrong, Mood. & M. 391.
3 Hawes v Armstrong, 1 Scott, 661; 1 Bing. N. C. 761; 1 Hodges, 179; Kennaway v. Treleavan, 5 M. & W. 500; Bentham v. Cooper, 5 M.
& W. 621; Raikes v. Todd, 8 Ad. & El. 846; Shortrede v. Cheek, 1 Ad. & El. 57; Emmott v. Kearns, 5 Bing. N. C. 559; 7 Scott, 687; Dutchman v. Tooth, 5 Bing. N. C. 577; Haigh v. Brooks, 10 Ad. & El. 319, 320.
4 Raikes v. Todd, 8 Ad. & El. 856; James v. Williams, 5 B. & Ad. 1109; Hawes v. Armstrong, 1 Bing. N. C. 761.
5 Knight v. Crockford, 1 Esp. 190; Ulen v;. Kittredge, 7 Mass. 233; Saunderson v. Jackson, 2 B. & P. 238; Lemayne v. Stanley, 3 Lev. 1; Coles v. Trecothick, 9 Ves. 234, 249; Lowry v. Adams, 22 Vt. 160.
1 Lawrasonw. Mason, 3 Cranch, 492; Fell on Guaranties, ch. 3, § 18; Wildes v. Savage, 1 Story, 22; Union Bank of Louisiana v. Coster, 1 Sandf. 563.
2 Lawrason v. Mason, 3 Cranch, 492; Boyce v. Edwards, 4 Pet. 121; Adams v. Jones, 12 Pet. 207; Wildest v. Savage, 1 Story, 22, 26, 27; Carnegie v. Morrison, 2 Met. 381; Russell v. Wiggin, 5 Law R. 533; Story on Bills of Exchange, § 460, 461, 462, and note, 463; Bushell v. Beavan, 1 Bing. N. C. 103; Hawes v. Armstrong, 1 Bing. N. C. 761; Newbury v. Armstrong, 6 Bing. 201; Pace v. Marsh, 1 Bing. 216.
3 Mclver v. Richardson, 1 M. & S. 557; Gaunt v. Hill, 1 Stark. 10; Mozley v. Tinkler, 1 Cromp., M. & R. 692; Jones v. Williams, 7 M. & W. 493. See, also, Craft v. Isham, 13 Conn. 28; Clark v. Remington, 11 Met. 361; Howe v. Nickels, 22 Me. 175; Kay v. Allen, 9 Barr, 320; Mus-sey v. Rayner, 22 Pick. 223; Allen v. Pike, 3 Cush. 238; Menard v. Scudder, 7 La. An. 385.