
    Woodson Wren vs. W. Pearce, et al.
    The statute of frauds in this state differs from the statute of Charles II., in containing the word promise as well as the word agreement; it is not necéssary, therefore, under the statute of frauds in this state, that the consideration of the promise should be in writing.
    Where an account was made out against A, for articles furnished him, and B, at the time, at the foot of the account, wrote “I will guaranty the payment of the above j” and having, previous to the purchase, promised to guaranty the payment; held3 that B was liable on his guaranty.
    A declaration averring that the defendant promised the plaintiff he would guaranty the payment of articles furnished his son, and that, relying on this guaranty, plaintiffs did then and there furnish the son the articles, and the defendant then and there guarantied the payment of the same, in writing j held, to be good on demurrer.
    In an action on a guaranty of the payment of the debt of another, it is not necessary to prosecute to insolvency the principal debtor, before the guarantor can be held liable. Perhaps aliter3 if a guaranty of solvency merely.
    The plaintiffs, in the circuit court, brought their action of assumpsit against the plaintiff in error to the May term, 1841. The declaration contains two counts, the first of which charges that on the 17th of March, 1837, in consideration that the said plaintiffs, at the special instance and request of the said defendant, would sell and deliver to one John V. Wren (his son) on credit, all such goods as he, said John Y. Wren, sh/uld have occasion for and require of the said plaintiffs, in commencing his profession as a physician, he, the said Woodson, the said defendant undertook, and then and there faithfully promised the said plaintiffs to be accountable to them, the said plaintiffs, for the amount of $125 02, as presented to him the said Woodson Wren, the said defendant, in a bill of particulars here brought into court, which the said plaintiffs then and there delivered to the said John Y. Wren, as aforesaid, to aid and assist him in commencing his profession. And the said plaintiffs aver, that they, confiding in the said promise and undertaking of the said Woodson Wren, the said defendant, did sell and deliver to John Y. Wren, on credit, goods, medicines and medical instruments of great value, to wit, of the value of $125 02, which he, said John Y. Wren, had then and there occasion for, and required of the said plaintiffs in the way of his said John Y. Wren’s profession and business, and at and for certain reasonable prices, or sums of money, amounting to the said sum of $125 02, at which time then and there the said Woodson Wren undertook, and then and there faithfully promised the said plaintiffs, to pay them the aforesaid sum of money, and then and there guarantied the payment of the said sum of money, of $125 02, in writing, thereby acknowledging the account to be reasonable and correct, and himself to be indebted and bound to pay the same, according to the effect of his said undertaking so then made by him the said defendant. The breach was, that although the credit for the payment of the price of said goods, medicines, &c. by the said John Y. Wren to the said plaintiffs hath long since elapsed, yet the said JohnY. Wren (although often requested so to do) hath not as yet paid the said sum of $125 02, or any part thereof, &c. Avers notice of the failure to pay, and demand upon plaintiff in error, and his refusal to pay, &c.
    The second count avers, that on, &c., at,&c., in consideration that the said plaintiffs, at the special instance and request of the said John Y. Wren, had sold to the said John Y. Wren, on credit, such goods, medicines, and medical instruments as he should have occasion for and require of the said plaintiffs to carry on his business, he the said defendant undertook, and then and there faithfully promised the said plaintiffs to become liable to them for the same, and then and there assumed the payment of the said bill of goods, medicines, and medical instruments, so to him sold as aforesaid, amounting to $125 02, had, received and accepted by the said John Y. Wren (son.of the said Wood-son Wren,) and the said defendant then and there guarantied the payment of the same in writing. And the said plaintiffs aver, that they, confiding in the said promise and undertaking of the said defendant, then and there agreed upon between the said plaintiffs and the said John Y. Wren and the said defendant, which he the said John Y. Wren, then and there had occasion for and required of the said plaintiffs as aforesaid, and which was by him then and there assumed as aforesaid ; breach, that said defendant had not accounted, &c., although often requested, although said account still remains due and unpaid.
    The defendant, now plaintiff in error, demurred to said declaration, and set down the following causes of demurrer :
    1st. Said declaration doth not state or show upon what credit said goods in plaintiffs’ declaration mentioned, were sold to said John Y. Wren.
    2d. The declaration does not state when or where payment was required of and refused by the said John Y. Wren.
    3d. The said declaration does not aver or show any consideration for the supposed guaranty or undertaking of the said defendant.
    4th. Because the said declaration does not show what goods were sold by them, said plaintiffs, to the said John Y. Wren, and because the same is double.
    5th. Because said John Y. Wren is not sued in said action, and because it does not appear in said declaration that he, the said John Y. Wren, has been sued to insolvency, or is unable to pay the said demand sued for; and also the said declaration is, in other respects uncertain, informal and insufficient, &c.
    Upon hearing of the demurrer, the court sustained it as to the second count, and overruled it as to the first, upon which the court entered a judgment by default against the defendant, and directed a writ of inquiry of damages; upon executing which the jury assessed the plaintiffs’ damage to the sum of $174 19, upon which the court rendered final judgment, from which this writ of error with supersedeas is prosecuted. The guaranty was at the foot of the account, and in these words :
    “ I will guaranty the payment of the above bill. Woodson Wren.”
    
      Sanders and Price, for plaintiff in error.
    The errors assigned question the correctness of the ,decision of the court, in overruling demurrer to first count in plaintiffs’ declaration ; the rendering judgment by default generally, without specifying upon what count in plaintiffs’ declaration, and in not sustaining demurrer to the whole declaration ; and in rendering judgment, it being for too much, the defendant not being liable for interest.
    The duplicity of the first count is manifest, and cannot, agreeably to any known rule of pleading, be sustained. It sets out that said defendant undertook to be accountable for the amount of $125 02, if the said plaintiffs would sell and deliver to said John Y. Wren, &c., on credit, all such goods as he, said John Y. Wren, should have occasion for and require of the plaintiffs, in commencinghis profession as a physician; then avers that, confiding, &c., said plaintiffs did sell and deliver to John Y. Wren, on credit, goods, medicines and medical instruments, of the value of $125 20, &c., at which time said defendant undertook, and then and there faithfully promised said plaintiffs to pay them the said sum of money, and then and there guarantied the payment of the said sum of money in writing, thereby acknowledging the account to be reasonable and correct, and himself to be indebted and bound to pay the same, according to the effect of said undertaking, &c.; by which it is manifest that the inducement to the contract as laid, is different from that charged in the declaration. In one place, defendant is stated to have agreed to be accountable; in another, to have promised to pay; in another, guarantied the payment in writing, and thereby acknowledged himself to be indebted, &c. These different attitudes and undertakings, so incongruous and double, need only to be pointed out to manifest their absurdity ; for which reason the court erred, in not sustaining demurrer to the whole declaration. See 1 Chitty’s Pleading, 259 to 261, Tit. Duplicity. See also Dallwff-v. Reed, 1 Walker’s Reports, 74, and cases cited.
    But if we should be mistaken in this view, has the plaintiff shown any cause of action 1 The account is made out against John Y. Wren, and Woodson Wren, guarantee. The credit could not be given to John Y. Wren, if Woodson Wren undertook and then and there faithfully promised to pay, &c.; the credit would have been to him separately, or jointly with said John Y. Wren ; if the latter, the action should have been joint. If the credit was given to John Y. Wren, and the plaintiffs rely upon the guaranty, the action is misconceived. It should have been case, and not assumpsit. See Fell on Guaranties, 188, sec. 35, and authorities there cited, in pages 188 to 193.
    Again. The written undertaking is, “ I will guaranty the payment of the above bill.” Technically this is no guaranty at all, it is only an agreement to guaranty the payment; or in more technical language, an overture of guaranty. See Fell on Guaranties, 50, pi. 10, and cases cited. The undertaking should have been absolute.
    It is laid down by Theobald on Principal and Surety, p. 5, as follows : The consideration must, at the time the promise is made, be wholly or in part executory ; for instance, if a person promises, in consideration of something to be done, as in consideration of goods to be supplied, or credit to be given, it is an executory, and sufficient; if in consideration of something already done, as of credit already given, or already agreed to be given, or of a debt already existing, an executed or past consideration, and such a consideration is insufficient.
    Lastly, if this is a guaranty, there is no consideration averred or shown. An inducement is set out for an assumpsit, but none for the guaranty. The contract of guaranty is like all other contracts or agreements — there are things necessary — parties, mutuality of contract; and consideration. Fell on Guaranties, 42.
    Guarantors, like other securities, shall not be bound beyond the extent of the engagement, which shall appear from the expression of the security, and the nature of the transaction. Ib. 116, 117, and note. From all which we ask this honorable court to render a judgment sustaining said demurrer, and judgment for plaintiff in error in bar of said action.
    
      Bullock, for defendant in error.
    The demurrer was properly overruled in the court below, to the first count in plaintiffs’ declaration. The reason first assigned in defendant’s demurrer, cannot reach the objection the defendant below wishes to make to the declaration. If the ' credit upon which the goods were sold had not expired, defendant should have plead, and alleged the fact in his plea.
    The second reason assigned, is met by the words in said declaration, “ then ” and “ there had notice,” which is sufficient.
    The third cause was overruled properly. The averment that John Y. Wren was the son of defendant, is a sufficient consideration, or inducement. Saund. on PI. 549.
    Fourth. The declaration particularly sets forth the kind of goods sold'; nothing more could be required. The assertion that the “ declaration is double,” is not a proper description of duplicity. 1 Chit. PI. 579. Duplicity must be pointed out, and particularly set forth, so that it may be seen wherein the duplicity exists.
    Fifthly. It was not necessary in law to sue John Y. Wren, or that he should be sued to insolvency, or that he should be unable to pay the demand. The goods were delivered to John Y. Wren, but the credit given to defendant. The question as to whom the credit is given, is a question of fact for the jury. 2 Saund. PI. & Ev. 547. Defendant cannot avail himself of this reason on demurrer; he should have plead, and given the fact in evidence to the jury. By demurring he ad-mits all the allegations in the declaration.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought against the plaintiff in error, by W. H. Pearce & Co., upon a guaranty made by him of an account created by his son. The declaration contains two counts. A demurrer was filed to it, which was overruled as to the first, but sustained as to the second. A judgment, with writ of inquiry of damages was awarded, and the cause afterwards brought by writ of error to this court, to test the correctness of the decision upon the demurrer.

The first count in the declaration sets out, “ that in consideration that the plaintiffs, at the request of the defendant, would sell to John Y. Wren, the son of the defendant, on credit, all such goods as said John Y. Wren should have occasion for and require, in commencing his profession as physician, he the said Woodson Wren undertook and promised the plaintiffs to be accountable for the same, to the amount of $125 : and avers that they, confiding in said promise, did sell and deliver to said John V. Wren, on credit, goods, medicines, and medical instruments, to the value of $125, at which time then and there, the said Woodson Wren undertook and promised the plaintiffs to pay the aforesaid sum of money, and then and there guarantied the payment of the same in writing.” The terms of the guaranty, written at the foot of the account, and signed by the defendant, are, “ I will guaranty the payment of the above.”

Yarious grounds are taken in support of the demurrer, only part of which will be noticed. It is first said, that no consideration is shown for the guaranty. Qur statute of frauds is, in this particular, unlike the statute of Charles II., and corresponds with the acts of Yirginia and Tennessee, which contain the word promise as well as the word agreement. It has been holden, in the construction of the statutes of those two states, that the consideration of the promise need not be in writing. 5 Cranch, 152. Taylor v. Williams and Ross, 3 Yerger, 330. We adopt the same construction of our statute.

But for another reason, the objection could not be sustained in this case. “Where the guaranty or promise, though collateral to the principal contract, is made at the same time with the principal contract, and becomes an essential ground of the credit given to the principal debtor, the whole is one original and entire transaction, and the consideration extends and sustains the promise of the principal debtor, and also of the guarantor. No other consideration need be shown, than that for the original agreement upon which the whole debt rested, and that may be shown by parol proof, as not being within the statute.” This is the language of Chancellor Kent, 3 Com. 122. See 1 Peters, 476. This principle covers the present case, because in the declaration the guaranty is averred to have been made at the time of the delivery of the goods, and the promise to guaranty to have been made before.

The case above cited from 3 Yerger is, in many of its features, l’ike this, and is a strong authority for the recovery in this.

It is next objected that John V. Wren has not been sued to insolvency. We do not think that this objection can be sustained. The guaranty is of payment by John Y. Wren, not of his solvency. If the undertaking were of the latter character, a suit would probably be necessary against the principal debtor, or proof of his insolvency. Bell v. Johnson and Hicks, 4 Yerg. 196. But where it is of the former kind, it has been holden that the creditors were not bound to institute any legal proceedings against the debtor. Douglass v. Reynolds, 7 Peters, 127. See also Allen v. Rightmere, 20 Johnson, 365.

We do not think it necessary to dwell upon any of the other points, as they do not, in our view, justify a reversal of the judgment.

Judgment affirmed.  