Deutsch ex rel. Kanders v. Bond

Miller, J., delivered the opinion of the Court. The appellants sued the appellee upon the following agreement signed hy him and others, hut not under seal. “ We, the undersigned, take pleasure in recommending G. W. Simpson, M. D., to Deutsch & Co. We also severally agree to become responsible for three hundred and fifty dollars to said Deutsch & Co., to he forthcoming in thirty days after the final delivery of the work. ’ ’ The Court instructed the jury that this instrument was not sufficient to hind the defendant, for want of a consideration expressed therein, and that the plaintiffs could not therefore recover in this action. It appears from the record, that Doctor Simpson, and the plaintiffs, Deutsch & Co., who were printers, entered into a written contract, hy which the latter, in consideration of $400, to he paid them hy the former, agreed to furnish him one thousand copies of the work, entitléd “ Female Instructor and Guide to Health,” of which he was the author, and he agreed to pay them this sum within thirty days after completion of the sheets of this hook, and to that end, for their further security, “ gives them,” (as the contract expresses it,) “a written guaranty signed by a number of responsible parties to the amount of $350,” and it is contended that the consideration for this contract, is a consideration also for the guaranty on which this suit is brought. Such may have been the intention of the parties, hut the question is, has that intention been carried out in the mode which the law imperatively requires ?

In Hutton vs. Padgett, 26 Md., 228 , this Court re-affirmed what .had been established hy other decisions in this State, and what has been the settled law in England, ever since the case of Wain vs. Walters, 5 East, 10, “ that to hind a party upon a collateral promise to answer for the debt or default of another, it is necessary, under the Statute of Frauds, that the consideration as well as the promise should appear from the writing.” They also add, what is ¹⁶⁹ equally well settled, that it is not necessary the consideration should be stated in express terms, but it is sufficient if it can be collected or implied, “with certainty from the instrument itself.” And in Frank vs. Miller, 38 Md,, 450, it was also said to be the settled law that in such a case reference could not be had to other papers or writings unconnected with the guaranty, and which could not be connected with it, except by the aid of parol proof, and that to allow the connection to be made out by such proof, “ would he an evasion of the Statute, and would open the door to the very mischiefs the Statute was intended to prevent.” But it has been earnestly argued that the case of Nabb vs. Koontz, 17 Md., 283 , sustains the position taken by the appellants’ counsel. That case, however, was referred to in Hutton vs. Padgett, in support of both propositions, which the Court there affirm. It was a case where a guaranty, by a third party, was written upon a promissory note at the same time that the note itself was executed and delivered to the payee, and was in these terms : “I hereby guarantee the payment of the above note of Elizabeth D. Nabb, on maturity.” It was in view of that state of facts, that the Court said, “ where the written promise of the principal debtor sets forth or imparts a consideration, and the undertaking of the guarantor refers to the original indebtedness, and is made and delivered to the creditor at the same time, this objection under the Statute of Frauds does not apply, and the guaranty is good.” All the authorities cited in support of that proposition, were cases almost identical with the one then before the Court, where absolute guaranties had been endorsed on notes contemporaneously with their execution, and where both instruments taken together