Bates v. Starr , 6 Ala. 697 ( 1844 )

COLLlÉít, C. J.

The only question in this case is, Whether ‘the undertaking of the defendant is an original and direct promise to pay the plaintiffs so much as Searll might agree should be the price of the rent of their store house, or was it collateral to, and dependent upon the non-performance of a contract made with Searll on his own account. It is insisted for the defendant, that Lawson, et al. v. Townes, Oliver & Co. [2 Ala. Rep. 373,] is a •case in point, and fully sustains the decision of the circuit court_-In that, case,-the defendants gave a recommendation in writing, toa third person, addressed to“whom itmay concern,” stating his desiré to purchase a stock of liquors, &c. and concluding with a warranty of the fulfilment of his -contract.” “This court considered •the writing a letter of credit and guaranty, and to charge the persons subscribing it, notice should have been given of the sale x>f the goods, and the demand of payment of the primary debtor.

In Chase v. Day, [17 Johns. Rep. 114,] the defendant said to-the plaintiff, if he would let his nephew have newspapers to sell* &e. -he would be responsible for the papers he should take: Held,, that this was an original contract; for the credit was wholly given to the defendant, who made the promise. It is of the essence of a guaranty, that there should be a principal debtor, for it is a collateral engagement for another. [Chitty on Con. 397.] But if a! third person be not liable, or the defendant be liable with him jointly, then the promise Will be considered as primary, and not ■accessorial. [Chitty on Con. 408.]

In the case before us, the defendant informs the plaintiffs, that Mr. Searll would apply to them for the rent of their building, then in charge of David McPhail, and promises to be responsible for any arrangement, he may make in respect to renting the same.. Here is a direct promise to be responsible for the payment of the rent, not to answer for the default of Searll. In fact, it cannot be assumed from the writing, that the latter wanted the house for his own use, or that it was expected any credit should be given to him by the plaintiffs. From any thing appearing to the com, trary, Searll may have been employed by the defendant as an. agent to procure the house for him. But be all this as it may,, the engagement of the defendant does not depend upon the non-, performance of a contract by another, but the terms employed, are equivalent to a direct and positive promise to pay, if the plaintiffs would rent the house to Searll. This was done, and the defendant’s liability thereby fixed, without the necessity of a, notice or demand, as required in the case of a guaranty-.

We have not thought it necessary to consider the form of .the counts in the declaration, yet it seems to us- that the writing could not have been excluded under the first; for that count describes.it, and the legal question presented on the bill of exceptions, should have been raised on demurrer. But without adding .more, it is, •clear that the circuit court erred in excluding the evidence from the jury; its judgment is consequently reversed, and the. cause re-, manded.