Before leaving the subject of guarantees, it may be remarked that in Pennsylvania, a peculiar signification has been given to the word guarantee, as distinguished from other words of similar import, such as "agree to become answerable," or the like, and a guarantee of a debt due by another, merely imports an undertaking that the debt is susceptible of collection, and the guarantor is not liable until the insolvency of the principal is shown. Such a course of decision, though it has been sometimes regretted, is firmly established by a class of cases: Johnston v. Chapman, 3 P. & W. 18; Isett v. Hoge, 2 Watts, 128; Snevily v. Ekel, 1 W. & S. 204; Parker v. Culvertson, 1 Wall. Jr. 161.-R.
A guarantor may specify in the letter of credit the terms on which he will be bound; and if these terms are complied with he is bound, though the law would have prescribed the performance of other acts by the party seeking to as well as on that of J. A. & Co. A verdict was found for the plaintiffs. Schuler moved for a new trial, on the ground that on the face of the agreement he had not signed on his own behalf, and that the evidence was inadmissible to show that he had. It was held, however, by the Court of Appeal, affirming the decision of the Queen's Bench Division, that, there being an ambiguity on the face of the contract as to the capacity in which Schuler signed, evidence that the latter intended to sign in his own right as well as *on behalf of J. A. & Co. did not contradict the document, and was admissible, and that Schuler must be taken to have signed in the double capacity of agent and guarantor (y).
There is one thing which, though collateral to the Law of Contracts, relates so peculiarly to this branch of the Statute of Frauds, that I think it ought to be mentioned. After the 4th section of the Statute of Frauds had rendered verbal guaranties unavailable, actions upon the case for false representations, under circumstances in which, before the Act, the transaction would have been looked on as one of guaranty, were subject him on his guarantee. Therefore a guarantor undertaking to pay on receiving reasonable notice of the failure of the principal debtor to pay, dispenses with notice of the acceptance of the guarantee, even if the law would have required such notice: Wadsworth v. Allen, 8 Gratt. 174. See also Baker v Band, 13 Barb. 152; Spicer v. Norton, Ib. 542; Bickford v. Gibbs, 8 Cush. 154; Klein v. Currier, 14 111. 237; Farmers' and Mechanics' Bank v. Kercheval, 2 Mich. 504.
(y) Young v. Schuler, 11 Q. B. D. 651.
As to the necessity of notice of acceptance of the guarantee, see Unangst v. Hibler, 26 Pa. St. 150; Lawton v. Maner, 9 Rich. 335; Yancy v. Brown, 3 Sneed, 89; M'Dougal v. Calef, 34 N. H. 534; Kellogg v. Stockton, 29 Pa. St. 460; Cahuzac v. Samini, 29 Ala. 288; Bright v. M'Knight, 1 Sneed, 158; Wardlaw v. Harrison, 11 Rich. 626; Paige v. Parker, 8 Gray, 211; McNaugh-ton v. Conkling, 9 Wis. 316; Powers v. Bumcratz, 12 Ohio St. 273; Maynard v. Morse, 36 Vt 617.-s.
Often brought. For instance, if A. went to a tradesman to persuade him to supply goods to B., by assuring him that he should be paid for them, the tradesman, in case of B.'s default, could not bring an action of assumpsit as upon a guaranty, because there was no written memorandum of what passed; but he brought an action on the case, in which he accused A. of having knowingly deceived him as to B.'s ability to pay: and if the jury thought this case made out, he succeeded in his action, and received pretty nearly the same sum as he would have done if there had been a guaranty. However, as this was inconsistent with the object of the Statute of Frauds, the legislature put an end to it by enacting, in statute 9 Geo. IV. c. 14, s. 6, commonly called Lord *:Tenterden's Act (which, however, is not confined to cases within the Statute of Frauds) (z), "that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon (a), unless such representation or assurance be made in writing, signed by the party to be charged therewith." 1
(z) Devaux v. Steinkeller, per Tindal, C. J., 6 Bing. N C. (37 E. C. L. E.) 88.
(a) It was probably intended that the words " money or goods upon," which were added in the Committee upon the Bill, should precede the word "credit."
1 It appears that statutes similar to this section of Lord Tenterden's Acts have been adopted in Alabama, California, Indiana, Kentucky, Maine, Massachusetts, Michigan, Missouri, Oregon, South Carolina, Vermont, Virginia, and Wyoming Territory. In some of these statutes is incorporated the provision that the party shall be bound by the signature of an agent duly authorized to sign. See the acts collected in the Appendix of Statutes to Mr. Reed's Work on the Statute of Frauds. It has been held that the existence of fraud will take the case out of the statute: Warren v. Barker, 2 Duv. 156; Sims v. Eiland, sentation as to the credit of another person within the meaning of the statute (d).
A trader being in bad circumstances and indebted to the defendant, applied to plaintiff for goods on credit, and referred him to defendant for her character; in fact, she had dealt with defendant to a considerable amount but had fallen into arrear, and defendant had ceased to supply her for some time, but had gone on again upon her undertaking to discharge her arrears at so much per week. The plaintiff inquired of the defendant's shopman as to her credit, and defendant, on being referred to by the shopman, said, that he might give her a fair character, which the shopman repeated to the plaintiff, and he thereupon trusted her with goods. These goods she sold, and paid defendant with the *proceeds, but never paid the plaintiff. The Court of King's Bench decided that evidence of the defendant's representation through his shopman to the plaintiff could not be admitted, not having been made in writing (b).