A. sent B. an order for goods, to which C. subjoined a letter, bearing, that “he might safely send A. the above order.” A. having afterwards become insolvent, C. was found liable for the price of the goods.
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Hew Brown sent Crichton, Strachan, Bell & Co. an order for a quantity of sugar, to which William Jack, who had formerly been in the practice of dealing with them, subjoined the following note:
February 15. 1796.
“Messrs Crichton, Strachan, Bell & Co.
Gentlemen,
My friend, Mr Brown, is a young man newly begun business. You may safely send him the above order. In doing so, you will very much oblige,
Gentlemen,
Your humble servant,
(Signed) William Jack.”
Crichton, Strachan, Bell & Co. accordingly, on the 16th of February, sent Brown a part of the sugar commissioned; and, in consequence of a new order, they sent him, on the 29th March, a small additional quantity.
About the middle of June thereafter, Brown became bankrupt, and left the country, on which Crichton, Strachan, Bell & Co. brought an action for the price of the sugar, amounting to L. 15, against him, and also against William Jack, who, they contended, had become his cautioner, by the letter of credit which he added to the first order.
In defence, Jack stated, that his uniform practice of dealing with the pursuers had been on two months credit; and that Brown was solvent, not only on the 15th February 1796, the date of the defender's letter, but for upwards of three months thereafter. He further
Pleaded, The letter founded on is merely a declaration that Brown was solvent at its date; and it is an established principle of the mercantile law, both of this country and of England, that no action will lie on such a letter, if the writer really believed the person recommended to be solvent, although in this he should be mistaken. But Brown was solvent, both on the 15th February, and for a period after it, which exceeded the length of credit usually given by the pursuers. So that even if the letter were actionable, the mora on their part, considering the unfavourable nature of a cautionary obligation, would have been a relevant defence against the action.
The Lord Ordinary repelled the defences, and found expenses due.
A reclaiming petition for Jack was refused without answers.
Lord Ordinary, Methven.For the Petitioner, Thomson.Clerk, Menzies.
Fac. Col. No 41. p. 97.
