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 made but one transaction and one contract, thus making it clear that the consideration which upheld the one might he taken to support the other, and that such consideration could be made out with certainty from the face of the instrument itself, without any aid from [170] parol proof, and thereby making a case where the plaintiff could proceed in his action, without any resort to such proof, further than to show identity of time. We have examined that case with care, as the opinion is a very able one, evidently prepared after much consideration, and we entirely approve the doctrine it announces and establishes, hut we are satisfied it is not in the slightest degree in conflict with the decisions in Hutton vs. Padgett, and Frank vs. Miller. So far from that, the Court say they would not disturb the case of Aldridge vs. Turner, 1 G. & J., 427, where the guaranty was written on the note itself, but point out the difference between that case and the one they were considering, viz., that in Aldridge vs. Turner, it did not appear at what time the guaranty was written on the note, and the pleadings indicate it was done after the note had been made and delivered to the plaintiffs. The case of Mitchell vs. McCleary, 42 Md., 374, was similar to that of Nabb vs. Koontz, and was decided upon the authority of the latter. There the guaranty on its face, refers in explicit terms to the lease, and sufficiently indicates that it was written upon, and as part of it, hut this latter fact, (though not expressly so stated in the report,! was more clearly shown in the pleadings which admit the guaranty was in truth a part of the lease, and was executed prior thereto, and as a condition precedent to the making of the lease. And it thus appears that, in this respect, that instrument was drawn in conformity with the usual practice in this State, where security is exacted by the lessor for payment of the rent. The present case must, therefore, he tested by the uncontroverted law of Maryland, as stated in the two first cases to which we have referred. Can the consideration for this guaranty be collected or implied with certainty from the instrument itself, without recourse to paro 1 proof, or to other papers unconnected with it, save by such proof? We are all clearly of opinion, this question must receive [171] a negative answer. The alleged guaranty was not attached to, endorsed on, or otherwise by direct reference on its face, made part of the contract to which it is supposed to refer ; and it seems to us quite impossible, for any one reading it by itself, to say that it distinctly, definitely and certainly refers to this contract, and the work to be done under it. It nowhere mentions this contract, and what “ the work” is which it does mention, no one can tell with certainty without aid from the oral testimony of witnesses. This difficulty was in fact so apparent to the plaintiffs in the trial of the case, that they introduced such testimony for the very purpose of showing that the guaranty did refer to the contract, and in this way to make out a consideration for it. Such testimony was wholly inadmissible, but it appears by the record to have been admitted, and received without objection. If it had been objected to and excluded, the Court’s instruction would have been entirely correct, but it was. we think erroneous, in view of the testimony so admitted, and for that reason the judgment in favor of the defendant must be reversed. But it is apparent from what we now decide that upon another trial this testimony will be rejected, and as we can see no other possible ground on which the plaintiffs can recover, we shall reverse the judgment, and not award a new trial, without good cause shown in a special application therefor by the appellants’ counsel. (Decided 1st March, 1877.) Judgment reversed.