Jan. 13.
Before Sir Eovucxp Horny. Chi-f Judye. Lanz, Crawrorp & Ca. vs. Grover & Ca.
Claim for $17,686.60 breach of contract.
The Petition was filed on 12th December 1869, by Mr. Harwood, and consisted of four counts as follow:
Ist. That in consideration of a godown order for certain arms, &c., given them by the plaintiffs, the defendants guaranteed and promised to be answerable for the payment by one A. P. Porter of §17,636.60, being the balance due by the said Porter for the said arms,—breach, that the said Porter has not paid nor have the defendants paid the said sum.
2nd. That for the consideration aforesaid the defendants agreed that they would marantas and promise to be answerable for the payment as above—Breach that the defendants nevertheless refused to guarantee and promise, and that the above named A. P. Porter has not paid nor have the defendants paid the said balance of $17,686.60.
3rd. That for the consideration aforesaid and in consideration that the plaintiffs would employ the defendants to collect the said sum of $17,686.60, the defendants promised that they would collect the said sum from the said A. P. Porter Breach, that the defendants have not collected the said sum $17,686.60.
4th. That for the considerations mentioned in the last paragraph, the defendants promised and agreed that they would hold the said goods to the drier of the plaintiffs until such time as the said balance of $17,686.60 should be paid, and should the said A. P. Porter not pay the said sum, would re-deliver the said gods to the Plaintiffs—Breach, that the defendants have wrongfully parted with the said goods and have refused to re-deliver them though requested to do so.
On the 15th December Mr. Rennie, on behalf of the defendants, moved that the petition be dismissed without answer required, or that the plaintiffs be ordered to amend their petition by setting forth Ist the date form and wording of the promises &e., alleged to have been made by the defendants in the Ist and 2nd paragraphs of their petition, and 2nd, further particulars of the promises and agreements as alleged in the 3rd and 4th paragraphs and the date, form, and wording of them if in writing, and' also further particulars of the nature of the alleged breach upon the following grounds.
cient information to enable the Defendants First that the petition does not give sufi-reasonably to understand the nature of the claim against them, and-2nd that the petition is not framed in accordance with the 27 Rule of Procedure. Order granted that the plaintiffs show cause why the petition should not be amended.
On 21st Dec. Mr. Hannen, instructed by Mr. Harwood, on behalf of the plaintiffs, showed cause. In its present form the petition is perfectly good according to common law. It has been expressly ruled that it is not necessary to set out the words of a written promise. It also contains all necessary information to enable the defendants to put in an answer, We charge them with having guaranteed, and promised certain things. They surely know whether they did promise or no. If they think they did not, let them say s0, and we join issue at once. We are not obliged to expose the whole of our case before the trial.
Mr Reswre for defendants. I grant that the petition may be perfectly good by Common Law Procedure, but it is not ae cording to the Rules of this. Court. Rule a narrative of all the material facts and circumstances on which the plaintiff relies. These Rules ate taken from the Rules in Chancery which compel a plaintiff to set out all the written documents in his case, either me yerba or so much of them as is material. The plaintiffs seek to make us answerable for the debt of another. If they have no written promise, the action may be dismissed without answer required; if they have it may be demurred to ascot amounting to a guarantee, and the case need not go to trial. 1 insist therefore that it is material that we should know whether the plaintiffs do hold a written promise, and if 80 of what nature.
The Curer Jupcz—The object of the Rules of Procedure is to let the Deft clear! know what the plaintiff claims of him, an holias aright to all such information as may enable him to decide whether he will contest the claim as made, or whether he will admit it I never could understand what was meant by the inconvenience of " showing your hand." Nothing that can induce a Deft not to resist a claim should be withheld from him, and therefore anything, and any circumstances that shall bring back to his recollection ' promises made" should be readily given him. A man may forget that he hus promised; or he may forget his liability. When sned—nay, before he is sued—it is the business of the party who claims from him to do all in his power to convince him that his claim is a well founded one, and nothing should be kept back. If this defendant has promised, time, place, and circumstances should be clearly mentioned; if it is alleged or intended to be proved that he made such promise in writing, the writing or writings should be produced. The Petition must therefore be amended by setting forth the material document or documents, if any, on which the Plaintiffs rely. Costs to be costs in the suit.
The Petition was then amended by the addition of a paragraph 5 stating that the material documents were 1st a letter from Lane Crawford & Ca., to Glover & Ca., 18 Nov., 1868 in which they say. The terms of our contract being amount tobe paidinfull "ere delivery at Hakodadi, it will be neces-"sary that you hand as guarantee for pay= "ment of the outstanding balance, after de-"ducting the $20,000 to be paid here, "$17,686 66 within $ mos. from date." 2ad aletter from the same parties handing a godown order for delivery of the arms and requesting a cheque and guarantee for pay ment of $17,686.66 within 3 mos. 3rd a letter from Messrs. Glover & Ca. as follows.
Shanghai, 17th Dec, 1868.
Messrs. Laxe Crawroro & Ca.
Deax Sir,—As arranged we guarantee to collect froma. P. Porter Exq., Hakodadi, the sum of §17,686.60 being balance due youn contract of $2,000 stand of short infields as per account current dated 18 Nov., and we further agree to hold as security for your said balance the said rifles now in course of being shipped per Sunrise.
Yours very traly, pro. Grover & Ca, GA. Lixpsay.
4th. An account current rendered to Mr. Porter by Glover & Ca., with the following entry.
Dr. "Dec., 19,—Further payment account above guaranteed to Lane Crawford Copy us por their account. $17,686.60 Tls. 136,18.73," and. under the head Charges."
"Guaranteeing Commission and commission" on advance to Lane Crawford & Ca., Lper cent, Tis, 299.78.
Dec., 19,1868.
Signed p.pro. Grover & Ca., To the petition thus amended the Defen-27 directs that the petition -shall contain dants demurred as regards the Ist and 2nd
Text read from the printed page and cleaned; old type leaves the occasional error.