
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Haynes, King and Parker, JJ.
    WILLIAM H. H. SMITH v. THE BUTLER & WARD CO.
    
      Guaranty — When binding as to past transactions as well as to future advances — Consideration—
    (1). A guaranty is binding and enforceable as to past transactions or advances though as to these alone it may be without consideration, if it also covers and is supported by the consideration arising out of future transactions or advances.
    
      Same—
    
    (2). Whether the principle that “the promise to do or the doing of that which one is already under legal obligation to do, does not form a consideration for a promise,” applies to a promise made by a third person to .whom the promisee was not originally bound — Quere.
    Error to the Court of Common Pleas of Lucas county.
   PARKER, J.

This is a proceeding brought to reverse a judgment obtained by the defendant in error against the plaintiff in error in the court of common pleas of this county.

The cause of action stated in the petition in the court below arises out of the following circumstances: Charles Truman & Co.,in the years 1895 and 1896, were manufacturers of bicycles in the city of Toledo. The Butler & Ward Co., a corporation under the laws of New Jersey, were manufacturers and vendors at an eastern city of certain bicycle parts, among them bicycle saddles. In the season of 1895 Truman & Co. entered into negotiations with the Butler & Ward Co, for the purchase of certain bicycle saddles. In the course of that negotiation it came to the knowledge of The Butler cfo Ward Co., that W. H. H. Smith, plaintiff in error, was guaranteeing the performance of contracts entered into by the Truman Co. The Butler & Ward Co. thereupon applied to him for a guaranty of the payment of such indebtedness as might be contracted by Truman & Co. in the purchase of bicycle parts from them, and he gave a written guaranty, which reads as follows':

“Toledo, O., 5-13-1895 (May 13, 1895.)
“Messsr. Butler & Waid,
“Gentlemen: Your favor of the 11th inst. is at hand. I will guarantee the account of Truman & Oo. for the year (1895.)
“Respectfully,
“W. H. H. Smith.”

On July 13th, 1895, Truman & Co. gave an order to the Butler & Ward Oo, for 1000 ’96 saddles,- styles W and X, deliveries to be specified later, with a clamping pin 7-16 hexagon head, and other directions about the style of the saddles. The prices to be paid were stated in the order, and this is stated with reference to deliveries:

“It is understood that deliveries are to commence as soon after Oct. 1, 1895, as we shall specify — not later than Sept. 1, 1895 — ^and the order to be completed by June 1, 1896. Terms sixty days.”

This order was accepted by the Butler & Ward Co., and in pursuance of requests from Charles Truman & Co. they from time to time shipped bicycle saddles under this contract for 1000. The whole number of 1000 was not delivered during the year 1895, and on December 19, 1895, Butler & Ward wrote to plaintiff in error as follows:

“Mr. W. H. H. Smith,
“Toledo, O.
“Dear Sir:
“Your guaranty for goods purchased from us by Chas. Truman & Co. of Toledo, O., for the year 1895 will expire on the 31st da^ of this month. We have their order for a number of saddles to be shipped during the present season of 1896, and we write to inquire if your guaranty will cover purchases for the coming year. If so, kindly put the same in writing and send it to us at your earliest convenience, and greatly oblige,
• “Respectfully yours,
“Butler & Ward.”

It will be observed that this is not in the form of a re(quest for a new guaranty, but rather of a construction of ¡the guaranty already given. In response to this the plain - ¡tiff in error, on December 21, wrote as follows.

'“Messrs, Butler & Ward:'
“Gentlemen: — Your favor of the 19th inst, is at hand, The necessity for this guaranty is not apparent for 1896, as I think Chas. Truman & Oo. are in good shape. Still, if it will facilitate their business I am willing to guarantee iheir bills with you for 1896.
“Yours truly,
“W. H. H. Smith.”

Tt will be observed that there is a slight change in the phraseology of this guaranty from that used in the guaranty of May 13, 1895, and some deviation from the phraseology used in the letter of Butler & Ward of December 19th, requesting some further assurance, the guaranty of May 13, 1895, being “I will guarantee the account of Charles 'Truman & Co. for the year 1895.” The inquiry on the part of ■Butler & Ward is whether Smith’s guaranty will “cover purchases for the coming year”, and the response being that he is willing to “guarantee their bills for the year 1896.”

In the year 1896, 200 saddles (I believe that is the number) were furnished, completing the contract for 1000 which ¡had been entered into in the year 1895, and another 100 ■saddles were furnished which were not-covered by that contract, but it is conceded that the guaranty of December 31, 1895, covers that 100. It is claimed that by the terms of •the guaranty of May 13, 1895, and also by that of December 31, 1895, the 200 saddles furnished in 1896 were covered. These 300 saddles were not paid for by Truman & ■Co. They made default — became insolvent. Smith, the .•guarantor, failed to pay, and this action was instituted to recover the price of the 300 bicycle saddles so furnished.

It is not clear that the guaranty of the 13th of May, 1895, covers the 200 bicycle saddles furnished in 1896 under the contract for 1000. On the other hand, it is not clear that it does not cover them. But we do not pass upon that. Assuming that it does not cover the saddles, it is urged here by the plaintiff in error that there was no consideration for the guaranty of December 21, 1895, with respect to the 200 bicycle saddles furnished under the contract for 1000 which had been entered into prior to the time of the guaranty of December 21,1895. The principié is invoked by the plaintiff in error that a promise to do or the doing of that which one is already under legal obligation to do, does not form a consideration for a promise, and that therefore the guaranty of December 21, 1895, was, as to the plaintiff in error, with respect to these 200 saddles, without consideration. Assuming that this principle would be applicable to the case of a promise made by a third person to whom the promisee was not originally bound, we do not think it can be successfully invoked by plaintiff in error under the circumstances of this case. The acceptance of the order for 1000 saddles was upon the condition or understanding, as clearly expressed by the correspondence, that payment should be guaranteed by the plaintiff in error. The defendant in error was not bound, in our opinion, to furnish the saddles called for after the expiration of the time limit of bis guaranty of May 13th, 1895, until that time bad been extended ora new guaranty given covering the saddles called for. Hence the furnishing of the 200 saddles constituted a consideration for the guaranty of December 21, and the principle invoked by plaintiff in error is not applicable. And this is so whether the guaranty of December 21, 1895, be considered as a mere extension of that of May 13, 1895,or whether it be considered as an original guarantee. Upon another ground we think the judgment of the court of common pleas in this case is right,and should be sustained. The guaranty of December 21, 1895, is unquestionably'supported by the consideration arising from the furnishing of the 100 saddles not covered by the order of 1895 for 1000 saddles, and by its terms it covers the 200 included in that order but furnished in 1896. Now, a guaranty is binding and enforcible as to past transactions or advances though as to these alone it may be without consideration, if it also covers and is supported 'by the consideration arising out of future transactions and advances. The authorities in support of this are numerous, clear, and satisfactory.

George H. Beckwith, for Plaintiff in Error.

I. N. Huntsberger, for Defendant in Error.

For the reasons given the judgment of the court of common pleas will be affirmed.  