There is a recent case in which a single signature *to an agreement was held under the circumstances to have been made in a double capacity, purchase of cotton, I do hereby give you my guarantee for that amount (say £10,000) on their behalf;" and it was held, that whether the consideration, "your being in advance" was or was not a good consideration, depended upon the transaction to which the guarantee referred. Lord Denman, C. J., remarks: "Being in advance does not necessarily mean that the plaintiff was in advance at the time of the giving of the guarantee. It may have been intended as prospective." The judgment in the Exchequer Chamber was given upon this ground; and Lord Abinger, C. B., said that "there was in the guarantee an ambiguity that might be explained by evidence, so as to make it a valid contract."
Raikes v. Todd, above cited, is a good illustration of an insufficient disclosure of consideration. The guarantee was thus expressed: " Gentlemen, I hereby undertake to secure to you the payment of any sums of money you have advanced, or may hereafter advance, to Messrs. Davenport & Co., on their account with you, commencing on the 1st November, 1831, not exceeding £2000." Here it was held that the guarantee disclosed no consideration for the past advances, and was to that extent invalid, but that it was good as regarded the future advances. Thus, if the guarantee consists of several promises, that which is bad may be rejected without invalidating the remainder of the guarantee. There is no practical difference between past and future considerations, so long as the guarantee discloses a sufficient consideration in law to support the promise (of which see the next lecture). The consideration need not be co-extensive with the promise. (See Raikes v. Todd, per Ld. Denman, C. J.) And the courts will no longer enter into the question of adequacy of the consideration. See Chapman v. Sutton, supra, which is the last case where the question of the sufficiency of the inference of a consideration has arisen. See also Lang v. Nevill, 6 Jur. 217, and Johnston v. Nicholls, 1 C. B. (50 E. C. L. R.) 251.
It is permissible to adduce, in evidence of the consideration, the written correspondence between the parties, if that correspondence has been referred to in the guarantee, but not otherwise: see Dobell v. Hutchinson, 3 A. & E. (30 E. 0. L. R.) 355, and Higgins v. Dixon, 14 L. J. Q. B. 329.
The rules which govern the construction of contracts, and which will he afterwards considered, of course apply to guarantees. But there is one peculiarity attaching to them, which it may be well to notice here. Guarantees are either for definite or indefinite sums or periods: where they are not limited as to the amount guaranteed, or, being so limited, are in either case intended to affect future transactions until revoked, they are termed continuing guarantees. The distinction between these two classes of guarantees is one of some nicety, and often of importance, as regards the sufficiency of the consideration, which again frequently depends upon whether it be past or prospective.
The only safe rule of construction is to give the words used their natural meaning, taking into account the attendant circumstances which are admisviz., as agent for one of the contracting parties, and also independently as a guarantor. The facts were as sible in evidence to throw light upon the intent of the parties to the instrument. This rule has been recently applied in the case of Allnutt v. Ashen-den, 5 M. & G. (44 E. C. L. R.) 392, where the guarantee was thus worded : "I hereby guarantee Mr. John Jennings's account with you for wine and spirits, to the amount of £100." This was held to apply to an existing account; "for," said Tindal, C. J., "by account I understand the parties to mean some account contained in some ledger or book; and the case shows that there was such an account existing at that time. The natural construction of the guarantee, therefore, is that it relates to that account." In the subsequent case of Hitchcock v. Humfrey, 5 M. & G. (44 E. 0. L. R.) 559, the defendant, having guaranteed the payment of goods to be supplied by the plaintiffs to A., up to the 1st of July, gave, on the 9th of April, the following additional guarantee: "In consideration of your extending the credit already given to A., and agreeing to draw upon him at three months from the first of the following month, for all goods purchased up to the 20th of the preceding month, I hereby guarantee the payment of any sum that shall be due and owing to you upon his account for goods supplied." This was held to be a continuing guarantee: the words " following month " and " preceding month" being held to have a general application, the terms of the first guarantee being taken into account in construing the language of the second. For other cases of the construction put on these instruments, see Mayer v. Isaac, 6 M. &. W. 605; Jenkins v. Reynolds, 3 B. & B. (7 E. C. L. R.) 14; Allan v. Kenning, 9 Bing. (23 E. C. L. R.) 618; Batson v. Spearman, 9 A. & E. (36 E. C. L. R.) 298; Hargreave v. Smee, 6 Bing. (19 E. C. L. R.) 244; Nicholson v. Paget, 1 Cr. & M. 48; Martin v. Wright, 14 L. J. Q. B. 142 [since reported, 6 Q. B. (51 E. C. L. R.) 917]; and Johnson v. Nicholls, supra.1
1 So a guarantee, "If D. wishes to take goods of you, we are willing to lend our names as security for any amount he may wish," was held not to extend beyond the first delivery of goods: Rogers v. Warner, 8 Johns. 119. The 6ame construction was given in Aldricks v. Higgins, 16 S. & R. 212, where the words were: "L. C. having a desire to enter into trade in a small way, we hereby offer ourselves as security to any gentleman who may feel disposed to give him credit not exceeding $700, or anything less, as he may think proper to contract;" in White v. Reed, 15 Conn. 457; "In any sum my son G. may become indebted to you, not exceeding $200, I will hold myself accountable;" in Anderson v. Blakely, 2 W. & S. 237 : "Mr. P. having informed me that he is making some purchases from you, and that you wish some reference, I would say that you might credit him with perfect safety, and that anything he might purchase from you I will see paid for," where the court said : "There is more reason, perhaps, for giving a freer interpretation where the sum is, as in several of the cases, limited, because there the party intrenches himself within a certain amount, beyond which he can in no case be made liable. But when there is no restriction of the amount, the guaranfollows:-By articles of agreement under seal between J. A. & Co. and Y. & Co., Y. & Co. agreed to do certain work for which J. A. & Co. were to make certain payments, and the agreement contained this clause: "It is further understood between the parties to this contract that J. O. Schuler guarantees payment to Y. & Co. of all moneys due to them under this contract." The attestation clause was "signed and delivered by the said J. A. & Co. in the presence of C. T.," and Schuler, acting under a power of attorney, signed as tee should be carefully scanned, to see whether it justifies a party in the large construction contended for." And the same view was taken in Whitney v. Groot, 24 Wend. 82, upon the words: "We consider I. V. good for all he may want of you, and we will sell him all he reasonably asks of us on credit, and we will indemnify the same." On the other hand, in Grant v. Ridsdale, 2 Harr. & J. 186, "I will guarantee their engagements, should you think it necessary, for any transaction they may have with your house," was held to be a continuing guarantee till countermanded, but the reasons for the judgment are not reported. Instances of continuing guarantees will be found in Clark v. Burdett, 2 Hall, 197; Mussey v. Eayner, 22 Pick. 223; Bent v. Hartshorn, 1 Metc. 24; Douglass v. Reynolds, 7 Pet. 113; Lawrence v. M'Calmont, 2 How. 426. As, for example, "Mr. R. is about to establish a store of books and stationery. He will commence on a limited scale with the intention of enlarging the business next spring. He wishes to purchase school-books, etc, on a credit of four or six months, and paper, etc, on commission. For the faithful management of the business, and punctual fulfilment of contracts relating to it, the subscriber will hold himself responsible:"Mussey v. Rayner. While it is undoubtedly true that each case must depend on the particular terms of the guarantee, aided by the attendant circumstances of the parties, it follows: "P. P. A.-J. A. & Co., J. O. Schuler." Y. & Co. sued Schuler as guarantor, and evidence was has been often suggested, if not held, that the language should be very strong to justify a court in holding a guarantee to be a continuing one, until notice-given to the contrary : per Story, J., in Cremer v. Higginson, 1 Mass. 366: Nicholson v. Paget, 1 Cr. & M. 48; while, on the other hand, it has been more repeatedly held that the ordinary maxim, that the words of the instrument should be taken most strongly against the party using them, fully applied to guarantees: Mason v. Pritchard, 12 East, 227; Merle v. Wells, 2 Camp. 413; Drummond v. Prestman, 12 Wheat. 515; Douglass v. Reynolds, supra; Mayer v. Isaac, 6 M. & W. 610; where the remarks in Nicholson v. Paget, supra, are disapproved.