Thayer v. Wild

107 Mass. 449

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Morton, J.

The evidence at the trial tended to show that the plaintiff, for the purpose of obtaining security for goods which he contemplated selling to Spencer, had procured from him an order upon the Lamson & Goodnow Manufacturing Company for forty-five dollars per month. Before this order was presented for acceptance, the defendant signed and delivered ihe following paper: “ 1869, Jan. 23. For value received I guarantee to Joel Thayer that I will pay him the forty-five dollars per month, on condition that he does not carry the above order into the office of the Lamson & Goodnow Manufacturing Co.” The plaintiff did not present the order, and thus the condition precedent was performed and the defendant’s promise became operative. Relying upon this promise, the plaintiff sold to Spencer goods from time to time up to January 1870. We are of opinion that this was an original promise of the defendant and not a guaranty of a debt of Spencer. The defendant and Spencer were not concurrently liable to pay the same debt. The promise is not to pay for goods furnished to Spencer to an amount not exceeding forty-five dollars per month, but an absolute promise to pay that amount.. The words “ I guarantee,” in the connection in which they are used, are equivalent to “ I promise.” The liability of the defendant is not necessarily measured by the amoirnt of the debt due from Spencer to the plaintiff. The fact that it was .intended as security for the debt of Spencer does not destroy its character as an original contract. It is the same in principle as if the plaintiff had taken a promissory note of a third party to secure any balance which might be due by Spencer. Though it is security, it is not a promise to answer for the same debt.

If the contract in suit be thus regarded as an original promise, we think the evidence in the case would justify the jury in finding for the plaintiff under his declaration, and that the ruling directing a verdict for the defendant because the evidence did not support the declaration was erroneous. The declaration is inartificially drawn, but it alleges in substance that the defendant signed and delivered the written agreement for a good and valuable consideration, that the plaintiff did not present the order referred to in it to the company, and that the defendant has refused to perform his agreement. There was evidence which tended to prove these averments, and we think the case should have been submitted to the jury.

.Exceptions sustained.