KING. OLDERSHAW performance of it would have had to be averred, as of a condition precedent; and it is not the less so here because the consideration is void for uncertainty. Again, the agreement is to pay the sum due " on balance of accounts," so that the defendant was to be liable for nothing other than a sum in which the old debt was taken into account. [ *407 ] We are of opinion, therefore, that the plaintiffs are not entitled to recover, and we cannot help adding, that though we doubt not that the intention of the testator was perfectly fair, as indeed is shown by the indulgence he gave, and that he desired not to tie himself up, only because of the loss which might thereby accrue, still that he did endeavour to get a binding promise without giving any consideration for it, and in reality fails in consequence. What the defendant substantially bargained for was forbearance to the principal debtor, and to this he never had a right, though it was granted in fact. POLLOCK, C. B.: I regret very much that I am compelled to differ from the rest of the COURT, but it appears to me that the plaintiff is entitled to our judgment, and this whether we look at the authorities on the subject or at the reasonable construction which is to be put on the letter of guarantee with reference to the whole matter to which it relates. (His Lordship then read the guarantee.) I think a mercantile instrument such as this is, ought not to be read and construed with the strictness with which a declaration or plea might be. We ought (in my judgment) to see whether the parties have so expressed themselves as to show that there was a guarantee, and for what, and upon what consideration. By the Statute of Frauds such an undertaking must be in writing, and I do not intend to *question the case of Wain v. Warlters (1), that the consideration for the promise must appear as well as the promise itself, but, as there is in reality a consideration in this contract which is not expressed, it appears to me that effect ought to be given to it, so that the agreement between the parties should be carried into effect. The defendant undoubtedly intended to promise something, and for a consideration. On the faith of that promise the plaintiff has advanced money and given credit, and I think, unless we are compelled by reason or authority to decide against the plaintiff, we ought to give effect to what undoubtedly was intended between the parties. It is said that a consideration being expressed, we must take what is expressed to be the real, true and only consideration, and that we cannot notice any other that is not expressed. I do not feel (1) 7 R. R. 645 (5 East, 10). KING. [ *408] the force of that remark, and the rather because the considera- OLDERSHAW tion expressed is said to be no consideration at all; had there been no consideration expressed at all, it is clear from several cases (which it is unnecessary to cite) that the advance of money and the incurring of a further debt would (though not expressed) have been a good consideration for the promise to pay the debt arising out of such future transactions. I cannot see the good sense or the justice of at the same time deciding that the consideration stated is no consideration, and therefore will not support the promise, and yet it is sufficient to prevent us from looking at the agreement and seeing that it contains a real, substantial and good consideration, upon which the promise (at least as far as future transactions are concerned) may be enforced. It seems to me not to be good law, or logic, to say that it is a consideration and that it is no consideration, and this to defeat the real and honest intention of the parties (of one of them at least); and it seems to me we ought to construe the agreement "ut res magis valeat quam pereat;" and if what is stated to be the consideration is no consideration at all, we ought to see whether there is not another consideration which will render the agreement sensible and available quoad future dealings. (at least). In the case of Johnston v. Nicholls (1) the guarantee was in these words: "As you are now about to enter upon transactions in business with C., with whom you have already had dealings, in the course of which C. may from time to time become largely indebted to you; in consideration of your doing so I hereby agree to be responsible to you for, and guarantee to you the payment of, any sums of money which C. now is, or may at any time be indebted to you, so that I am not called upon to pay more than the sum of 2,000l." There the only consideration expressed was, entering upon transactions, not saying for how long; here the consideration expressed is forbearing to press for immediate payment. In the case cited MAULE, J., held the consideration to mean substantially that the plaintiffs would continue the dealings; so here forbearing to press for immediate payment really means allowing the account to go on, or allowing the dealings to continue, and the COURT held that the consideration was sufficient to support a promise to pay the past debt, as well as any future debt to be incurred. CRESSWELL, J., took the same view of the consideration, which he held to be continuing to have dealings, in which ERLE, J., concurred: see also the case of Russell and another v. Moseley (2). With respect to so much of the consideration as arose out of future advances and dealings, I am of opinion that what is (2) 3 Brod. & B. 211. (1) 1 C. B. 251. KING. [ *409 ] OLDERSHAW necessarily implied from the writing is to be dealt with as if it was actually there expressed *in words at length; the implication is not one of law it is one of fact. It is a necessary implication of fact arising out of the transaction and the language used respecting it. Where the law would imply a contract, that shall not prevail against an express contract: but it is not implied by law that the future advances, if made, shall be the consideration for a promise to pay them by a third person. It is implied as a necessary conclusion, not of law, but of fact, that that is what the parties meant, and that it is so clear, manifest and obvious that there is no occasion to express it. I think, therefore, the document is to be read thus-as to past debts, in consideration of your forbearing to press for immediate payment, and as to future dealings, in consideration of your continuing these dealings and making advances, if you shall make them, which you are not bound to do, I hereby undertake, &c.; or else as to past debts and future advances, in consideration of your forbearing to press for immediate payment, and allowing the account to go on, I undertake to pay the balance, consisting of either, not exceeding 1,000l. Suppose a guarantee were in these words, "I undertake without any consideration to pay for any goods you may supply to J. S., from the date of this," and the goods were furnished to J. S., could it be successfully contended that the party giving the promise would not be bound to pay for them on the ground of there being no consideration? I am of opinion in the negative, and "without any consideration" would be construed to mean without any other consideration than what arises out of the transaction itself. [*410] I am therefore, without any doubt, of opinion, that effect ought to be given to this guarantee in respect of the advances made and the debts contracted since the date of the guarantee, and I incline to think that effect ought to be given to it as to the whole claim, but as the majority of *the COURT is of a different opinion the judgment must be for the defendant. Judgment for the defendant. IN THE EXCHEQUER CHAMBER. MARIA OLDERSHAW AND ROBERT MUSHET v. (2 H. & N. 517–525; S. C. 27 L. J. Ex. 120; 3 Jur. N. S. 1152; 5 W. R. 753.) Per CURIAM (dissentiente CROMPTON, J.), the consideration for the promise to guarantee was the keeping the account open and making further advances. Per CROMPTON, J., that the consideration expressed being the forbearing to press for immediate payment, no other consideration could be implied. Per CURIAM, that an agreement to forbear for a reasonable time is a good consideration to support a promise to guarantee a debt due from a third person. ERROR on the judgment of the Court of Exchequer on a special case [ante, p. 667]. Montague Smith (with whom was W. M. Cooke) argued This guarantee is founded, not only upon the consideration of forbearance, but also upon the future advances which the parties contemplated. The word "therefore," incorporates the former part of the sentence in which it is found, and shows what was the motive or *consideration which influenced the mind of the guarantor. * Petersdorff (with whom was J. P. Norman) for the de- The consideration agreed for is the forbearance to press for immediate payment: the future advances are no part of the consideration. There is but one promise, and that attached before any further advances were made; it is absolute and not conditional upon the making of such advances. (1) Frequently referred to. See especially Fullerton v. Provincial Bank of Ireland [1903] A. C. 309, 72 L. J. P. C. 79; Miles v. New Zealand Alford R.R. -VOL. CXV. * * * Estate Co. (1886) 32 Ch. Div. 266, 289, 43 1857. June 22, 23. [517] [ *518 ] OLDERSHAW COCKBURN, Ch. J., now said: I am of opinion that the judgment of the CoURT below must be reversed. The question arises on a contract of guarantee. (His Lordship read the defendant's letter.) It was contended in the Court below and before us, that looking at the language of this document, it must be taken that the contract was based entirely on the consideration that Oldershaw would forbear to press for the immediate payment of the debt due to him at the time this letter was written; and it was said that the consideration was insufficient, an agreement to forbear to press for immediate payment being too vague to constitute the consideration for a promise; and several authorities *were cited in support of that position, and particularly the case of Semple v. Pink (1). We think, however, that this is not the true construction of the contract. I agree with what was said by the LORD CHIEF BARON in the Court below, that we must not construe this document with the strictness with which we should construe a pleading, but must look to the whole of the instrument in order to see what was the real meaning of the parties. Thus, though the words of promise on the part of the defendant follow immediately after the words "in consideration of your forbearing to press them for the immediate payment of the debt now due," we need not construe the words as we should the statement of a contract in a declaration. It stands thus, the defendant says, John and Joseph Francis King, being indebted to you for professional business, and cash lent and advances, and you having the right to close the account and insist on immediate payment, if, instead of doing so, you will leave the account open, and make further advances, although I do not ask you to bind yourself to do so, still, if you do so, I will be responsible to you to the extent of 1,000l. The consideration is not simply the forbearing to press for immediate payment, but also the future advances, which, though not stipulated for, were contemplated by the parties. But supposing that the sole consideration was the forbearing to press for immediate payment, I should not be prepared to assent to the doctrine laid down in Semple v. Pink (1). These (2) are authorities for saying that an agreement to forbear for a short time, or a little time, is too indefinite to constitute a consideration for a contract; but I am not at all prepared to assent to the proposition that an agreement to forbear for a reasonable time. would not be sufficient. I see no reason why the question as to *what is a reasonable time should not be considered and determined with reference to the circumstances of the case by (1) 1 Ex. 74. (2) Qu. "There"? |