Ordeman v. Lawson

Miller, J., delivered the opinion of the Court. The appellant brought this action of assumpsit against the appellees, partners, trading as J. H. Lawson & Bro., mainly upon the following written guaranty: “'April 19th, 1875. We guarantee the payment of a note endorsed by George W. Davis, Wm. M. Davis, I. T. Davis, the amount being five hundred dollars ; date of note, April 19th, 1875,” (signe’d) “ J. H. Lawson & Bro.” At the trial, the defendants interposed the objection that the instrument was within the fourth sectipn of the Statute of Frauds, and void for want of a sufficient consideration appearing on its face.

To meet this objection, the plaintiff offered in evidence the following promissory note: “April 19th, 1875. Twelve months after date, we, or either of us, promise to pay H. D. Ordeman, or order, the sum of five hundred dollars, for value received, with interest from date,” (signed) “ George W. Davis, Wm. M. Davis, Isaac T. Davis,” and then proposed to prove by George W. Davis, the following facts, viz., that in 1874, he had collected $250 for the plaintiff, and requested the latter to loan him $500, which the plaintiff agreed to do, provided he gave good security; that witness thereupon, on the 19th of April, 1874, wrote a note for that sum, payable to the order of Ordeman, at twelve months, with interest from date, signed it, obtained the signatures of his brothers, William and Isaac thereto, and took it to the plaintiff, who was not satisfied therewith, and refused to let him have the money without other security ; that he then went to the Lawsous who refused to go security upon the note, hut said they would guarantee the same, and thereupon gave him the following paper: “April 19th, 1874, Capt. Tí.

D. Ordeman, let George W. Davis, Wm. M. Davis and I. T. Davis, have five hundred dollars, by them giving their note, dated April 19th, 1874. We will pay it, provided you can’t collect it off of them.” (Signed) “J. H. Laioson & Bro.” and witness then took the note ¹⁵⁴ and this paper wrapped or folded together, and gave them to the plaintiff, who thereupon gave him $250 in cash, which with the money he had collected and had in his possession, made $500, the consideration of the note ; when this note matured, he was unable to pay it, and plaintiff agreed to renew it on payment of interest, and witness then wrote the note dated the 19th of April, 1875, obtained his brothers’ signatures to it, and the'n went to the Lawsons, and asked them to go security on it, which they refused to do, hut said they would guarantee it; that he then showed them the note, and one of them took the names, dates and amount from the note itself, and wrote the guaranty of the 19th of April, 1875, signed it, and gave it to witness, who then took' the note and guaranty, folded them together, and went to the plaintiff, and gave them to him ; that plaintiff then delivered to witness the note and paper of the 19th of April, 1874, (which he has since retained in his possession,) and he cancelled ihem by making pen-marks across the names of the makers; and that this note has not been paid. The plaintiff also further offered to prove by this witness, that there was no other note dated the 19th of April, 1875, made by these parties for $500, payable to the plaintiff, and proposed to follow this with testimony, showing that it was the intention of the defendants by the instrument of that date, to guarantee this identical note and none other.

But the Court rejected all this parol testimony, in so far as it related to or affected the note and guaranty of the 19th of April, 1875, refused to allow that guaranty to be offered in evidence, and sustained the defendants’ objection to the same under the Statute of Frauds. This was the effect of the Court’s action in sustaining the demurrer to the first count of the declaration, in ruling out the testimony in the first and second exceptions, and in rejecting the plaintiff’s prayer, and granting the defendants’ first prayer. ¹⁵⁵ These rulings present the only question of any importance in the case, and for deciding it, our own decisions afford ample guidance. In fact that part of the fourth section of the Statute of Frauds, which relates to agreements to answer for the debt or default of another has been so often considered, and its construction and effect so well settled in this State by the adjudications of the Court of Appeals, that resort to the decisions of other tribunals on this vexed subject is wholly unnecessary. We refer to the cases of Wyman vs. Gray, 7 H. & J., 409 ; Elliott vs. Geise, Ibid, 457; Aldridge vs. Turner, 1 G. & J., 427 ; Moale vs. Buchanan, 11 G. & J., 314 ; Nabb vs. Koontz, 17 Md., 283 ; Hutton vs. Padgett, 26 Md., 228 ; Frank vs. Miller, 38 Md., 450 , and Deutsch vs. Bond, 46 Md., 164 .

By these cases it is established, that in order to bind a party upon a collateral promise to answer for the debt or default of another, it is necessary that the consideration as well as the promise should appear from the writing. In this respect the leading English case of Wain vs. Warlters, has been adopted and followed in Maryland. It is not necessary however, that the consideration should be stated in express terms, but it is sufficient if it may be collected or implied with certainty from the instrument itself. It frequently occurs that a guaranty is written upon the instrument which it professes to guarantee, as where a third party writes upon a promissory note