
    Grant vs. Ridsdale et al.
    
    I) G, in a letter credit to R and 3, in favour of H and G; used the following expiresdions: *1 will guar* antee their engagements, should you thiftk it neces* savy,fo'r any trails-Action they may ¿aye with your nouse’’ — field, that the guaranty was An absolute one, aiid to" continue Cintil . counterAnapded by D G.
    Where the judgy Spent of the general court, after 3 general verdict in •assumpsit^ was reversed. because of ft defective count In the declaration.
    
      Procedendo awardi d. where the court of appeals concurred wfh the A'ourt below in the opinion, expressed the bill of exceptions, but reversed the judgment, because of a defective countin ifcte declaration. ;
    Appeal from the General Court. This was á special action of assumpsit upon a special guarantee for goods sold ánd delivered to JÍackét arid Grant, brought by the appellees, (the plairitiffs in the court below,) against the appellant. The declaration contained the following counts! 1. That the plaintiffs, on the 1st day of February 1799, at the special instance and request of the defendant, had before that time sold and delivered to' John Racket and Alexander Grant divers goods, wareá and merchandiMKthé defendant, iii consideration' of the Sánié, áft'énv|^^B&c. assumed upon himself, and to the plaintiffs then aM^A^e faithfully promised, that be would well and truly ^Ko ihem as much money as they reasonably deserved to have for the goods, wares and merchandizes, so sold and deli- ; veved to J. II. and A. G. And the plaintiffs aver, that they reasonably deserved to' have for the' goods, wiíres and merchandizes, so sold and delivered to R. and G. the sum of ^2000 current money, whereof the defendant, afterwards-, &c.' had notice'. 2. That the plaintiffs, on the,- &c. had', (at the special instance and request of the defendant before that time, &c. made to the plaintiffs by the defendant,^ sold and delivered to J. II. and A. G. divers other goods, wares and merchandizes; the defendant* afterwards- te in consideration of the same, assumed upon himself, and to the plaintiffs then and there faithfully promised, that he would well and truly pay to them as much money as they reasonably deserved to have for the said goods, wares and merchandizes, in case H. and G. did not thereafter pay and satisfy the plaintiffs therefor. And the plaintiffs aver, that they reasonably deserved to have for the goods, wares and merchandizes,'last mentioned, the sum of ¿£200(.) current money, to wit, $£c. of which II and G. and the defendant, afterwards, &e. had notice. And the plaintiff^ further aver, that II. and G. although often afterwards, §lc. thereto requested by the plaintiffs, have not paid in any manner, contented or satisfied, the said sum of money, or any part thereof, to the plaintiffs, but have wholly refused to pay the same to them, and still do refuse, and, have become wholly unable to pay the same, and are bankrupts and insolvent, to wit, &c. Of all which the defendant afterwards, &c. had notice. 3. That II. and G. on, &c. were about to purchase and buy of the plaintiffs certain other-goods, &c. to wit, &c. the defendant undertook, and to the plaintiffs did then and there faithfully promise, that he would well and truly pay to the plaintiffs as much current money as they deserve to have for the goods, &c. if the plaintiffs should sell and deliver the same to If. and- G. and they should fail iu making payment therefor. And the plaintiffs aver, that iu consideration of the promise and undertaking of the defendant, in form aforesaid made, they did afterwards,' &c. sell and deliver to II and G. the said goods, &c. which, said poods, &c. were at the time of the said sale and delivery thereof, to wit, &c. worth, and the plaintiffs deserved to have therefor, other sum of J2Ó0Q current money; of alt which premises II and G. and the defendant, afterwards, &c. had notice. And that the defendant, in consideration pf the premises, afterwards, &c. assumed upon himself, and to the plaintiffs then and there faithfully promised that he would well and truly pay to them the said sum ofs£200Q current money, whenever he should-afterwards be thereto requested. 4. That the plaintiffs, had on, &c. bargained and agreed to and with II and G. for the purchase of certain other goods, &c. by them, II. and G. of the plaintiffs to be then and there made, for the price and sum of-other «62000 current money; the defendant then and there, to wit, org &<;, assumed upon hiaaself, and tothe plaintiffs tin®, and there faithfully, promised, thq.! if they would deliver, the said goods, &c. to H. and G. he the defendant wrould well and truly pay to the plaintiffs the said sum o£ ¿£2000 current money, in case H. and G. should be unable, to pay for the s.ame, or refuse to pay therefor.. And the plaintiffs aver, that they, in consideration of the premises» afterwards, &c. did sell and deliver to & and G. the said goods, &c. for the sum of ¿£20Q0 current money, of which, the.defendant then aqd there had notice.. And the plaintiffs aver, that II and G. although often afterwards thereto requested by the plaintiffs, to wit, on, &c. have hitherto wholly refused to pay the said sum of ¿£2000 current money, and-do still refuse, and aye become bankrupt,' insolvent, and unable to pay the sum, of money last mentioned, <or any part thereof; by reason whereof the defendant became liable to pay to the plaintiffs the sum of. money last mentioned; and being so liable the defendant, in conside.ration thereof, afterwards, to. wit, on; &c. upon himself assumed, and to the plaintiffs then and there faithfully promised to pay them the suna of money last mentioned, when afterwards he should be; thereunf.o requested. Nevertheless, &c. The general issue vvas pleaded; and at the trial at May term 1803, the following facts were proved to the jury: That one of the Mr. Beaumonts\ of the house of .Ridsdale fy Beaunwnis, the plaintiffs, was, previous to the 6th of. Apvil 1795, in the United Stales, and among other places, in the city of Baltimore, where tire defendant, then resided, and where the house of Hackelt and Grant was established, soliciting orders for merchandise from his house;, that‘the defendant wrote the following letter, on the day on which it is dated, and sent the samé by,his son Alexander, who went'tq England with a view of establishing connexions in the commercial line there with the different manufacturers, and others.
    
      “Baltimore, 6 April, 1795.
    Messrs. Ridsdale and Beaumont, Gentlemen — By the recommendation of Mr. Beaumont, I take the liberty to address you by my son Alexander, who visits England with a,view of establishing connexions in the commercial line there with the different manufacturers, and others. He is concerned with Mr. John Racket of this place, under the firm of Hacket and Grant. For their plan, I refer to themselves; have, therefore, only to add, that I will guarantee their engagements* should; you think it necessary* for any transaction they may have with your house. I am5 &c.
    
      Bard. Grant.”*
    
    
      Alexander Grant was one of the, house of Backet and Grant; and he arrived in England some time before the, 30th of July in the said year, and delivered the letter to the plaintiffs, who, by the directions,of A. Grant., after his arrival in England, and while there, shipped on the SOth July in said year, to the house of Si. Si G. goods to the amount of ¿CÍ 560 0 10 sterling. Afterwards, and some, time in the fail of the said year, A. Grant returned tos Baltimore, and in consequence of orders sent by II. and G. and before A. Grant went a second time to England, the plaintiffs shipped goods to II. and G. to the amount of ¿Si 103 7 0, sterling, to wit, on the 18th of February 1796j and also that A. Grant vsient a second time to Englands and arrived there some time before the 23d of Juno in the year last mentioned, on which day the plaintiffs, by the, directions of B. and G. and while A. Grant was iu England, sliipped to H. and Cr. other goods to the, amount of ¡í689 9 8 sterling; and that the account which they produced contains a correct statement of the mercantile transactions between the plaintiff’s and U. Si G. and that the balance there stated, of ¿8707 7 2, was justly due to the plaintiffs froin Ijl. and G. who on the 30ib of April 1798, acknowledged the account to be correct, and signed the same. It was further proved, that II. & G. are insolvent. No evidence was given that the plaintiffs returned any answer to the defendant’s letter, or that any other corf respondence took place between the defendant and the plaintiffs, at any time, before the, 30th of April 1798. The plaintiffs further proved, that immediately after having liquidated the account with 11. and G. they required payment of them, which H. and G. declined and refused, alleging, that they were unable to pay the same;, of which application and refusal immediate notice was given to the defendant by the.plaintiffs, and a demand of the debt was made by them of him, who requested time, to consider thereon, and advise with counsel, and afterwards gave for answer, that he would not pay the debt. The plaintiffs further proved, thar after various applications to II. and G. and to the deCrtidant, they instituted a suit on the 6th of March 1799, in the general court for the western shore, against II. and G. and at October term 1800, obtained judgment against them, and after,wards issued an execution against them; from which execution they were discharged; by an order of the chancellor, under an insolvent law passed in 1800. The plaintiffs then applied to the court, that they would direct the jury, that upon the facts so proved and given in evidence, the defendant was answerable as the guarantee of Hackel and Grant, and that the plaintiffs were entitled to their verdict for; the balance due.
    Chasr, Ch. J. The. court give the direction prayed for. The court are of opinion, that the goods were shipped upon the credit of the letter; and that the guarantee was to continue until countermanded by the defendant; that the goodg were shipped upon the united credit of Backet apd Grant^ and the defendant.
    The defendant excepted to the opinion of. the court, and. the verdict and judgment being for the plaintiffs, the defendant appealed to this court.
    ■ The cause was argued at June term 18C6, before Tipgh* man, Buchanan,, Niqhopsqn, and Gantt, J„
    
      Marlin, for the Appellant,
    contended. 1. That the letter wrote by the appellant to the appellees was not an absolute guarantee. 2. That if it was, it did not extend beyond the first shipment after the receipt of the letter. 3, That th.e allegata and probata did not agree. He referred? as to the first point, to Butcher vs. Andrews, 1 Salk. 23. Marriott vs. Lister, 2 Wils. 141. Jones vs. Cooper, 1 Cowp. 237. Matson vs. Wharam, 2 T. R. 80. On the; third point, he insisted that the several, counts, in the declaration were defective; that the first count was, similar to. that in Butcher vs. Andrews, and Marriott vs. Lister? where the judgments were arrested. That |p the second count stated a promise, in consideration of having sold goods to B. and G. and the evidence was, that the promise was made before, the goods were sokb That in the third count, there was, no averment that H. apd G. did not pay for the goods; and, to the fourth count, that the evidence offered was different from that stated in that count; that; it did not pursue the letter of guarantee, which should have been set out according to its date, and ip the words there* nf; arid (bal the facts, as (hey appeared in evidence, should be stated, as also ought the continuance of the guarantee. He referred to Esp. Dig. 140, and 2 Went. Plead. 555. That there was no averment in the declaration that Bids'., dale and Beaumont, to whom the letter was addressed, and the plaintiffs, were the same persons.
    
      Harper, for the Appellees,
    admitted that some ofibe objections to the declaration were well founded; and that if' any one of the counts were defective, it would he fatal, if it was not Cured by the verdict, which he insisted would aid the defects urged. That if there was one good count, the verdict being general, it was sufficient; and if the evidence supported any Cue good count, it was sufficient. That the second count was a good one, to which the evidence would apply. He álstf contended that the letter was an absolute continuing guarantee, until it should be ¡countermanded.
    
      Martin, in reply, insisted, that whefq the evidence was Hot stated, and any one of the counts in the declaration Was defective, there was some reason to suppose there was evidence applicable to such defective count; but that if the evidence was set out, and there was any one count 70 which it did not apply, it was fatal.
    
      Curia adv. vult.
    
   The Court

at this term concurred with the General Court in the opinion pronounced in the bill of exceptions, but reversed the judgment because of a defective count in Che declaration.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED»  