Mann v. McDowell , 1846 Pa. LEXIS 121 ( 1846 )

Gibson, C. J.

Though it is generally true, says Mr. Newland, in his treatise on Contracts, page 92, that no bill lies for specific performance of a contract which relates to a personal chattel, it is otherwise where the contract is incomplete, and looks to the execution of articles to carry it out. The defendant’s agreement seems to be of that stamp. « Mr. Faux,” said he, in his letter to the plaintiffs, “called on me this morning to go his bail for the delivery of a large Pennsylvania canal boat next spring, of such dimensions as may be agreed on. I agree accordingly to go bail for Mr. Faux’s delivery of a canal boat next spring as above.” It seems to have been intended by this, that he should become a party to the principal contract, by signing the articles afterwards prepared; and a bill would lie to compel him to do so, or an action wrould lie for compensation at the plaintiff’s election. Whether this action be considered the one or the other, the result is the same as to the admissibility of the articles as a part of the promise. They are evidence of the agreement to which he promised to accede ; and they are proper to show for what, and how far he consented to be bound. The difficulties that might beset an action on the articles against Faux are out of the case; the argument that a surety is no further bound than his principal, being inapplicable to an action against the defendant, not as a surety, but as a party who broke an original and independent promise to become a surety. And the defendant is separately liable in this action, to the extent he would have been jointly liable had all the parties signed, the articles. That they were not signed by all, is immaterial. The promise did not refer particularly to an agreement evidenced by a specialty, or a writing of any kind. It would be sufficient to fix him with responsibility, that Faux and the plaintiffs orally agreed to the terms embodied in the articles ; and after they had done their part by delivering the boat Caroline to Faux in conformity to them, the defendant could not object that they had not signed them. It would be a fraud on him to attempt it. The bargain he undertook to guaranty, was inducement to proof of his promise; and as the terms of it were contained in the articles, they ought to have gone to the jury.

Judgment reversed, and a venire de novo awarded.