1871 Mountstephen v. Lakeman. guilty of a default or miscarriage in the matter. And it is only in respect of such a third person that the Statute of Frauds applies. The leading case upon the application of the Statute of Frauds has generally been considered to be Birkmyr v. Darnell (1), and in the note to Mr. Evans's edition of Salkeld's Reports it is stated, that, "from all the authorities it appears, conformably to the doctrine in this case, that if the person for whose use the goods are furnished is liable at all, any other person's promise is void, except in writing." I think that may very well be modified: "Or, if his liability is made the foundation of a contract between the plaintiff and the defendant, and that liability fails, the promise is void: " so as to include the case which I put to Mr. Charles of persons wrongly supposing that a third person was liable, and entering into a contract on that supposition. If, in such a case, it turned out that the third person was not liable at all, the contract would fail, because there would be a failure of that which the parties intentionally made the foundation of the contract. The lex contractus itself would make an end of the claim, and not the application of the Statute of Frauds, whether the contract was in writing or not, and whether signed or not. The law of contract gives you, as foundation, that a person was taken to be liable, and that the suretyship was a suretyship in respect of that liability. Take away the foundation of principal contract, the contract of suretyship would fail. Again, if there was a contract with reference to a liability, not existing at the time, by reason of the debt not being due at the time, but being payable in futuro, that would come under the word default, and there would be no difficulty about that. So, if there was a contract, "If A. B. will employ you to do work, I promise to become surety for him that he shall pay you; " in that case the promise would clearly come within the statute, because, although there was no liability existing at the time when the promise was made, there was a liability contemplated as the foundation for the promise of the defendant. It was a contract of suretyship in respect of a liability to be created; but if the liability were not created, there again the lex con203] tractus would prevail. There would be the condition precedent to the arising of any liability as surety, that there (1)1 Salk., 27. Mountstephen v. Lakeman. 1871 should be a principal debtor established. In all these cases, no doubt, one agrees thoroughly with what was laid down in the Court of Queen's Bench, because you have the case of principal debt contemplated by the parties, and suretyship founded in respect of that principal debt. But in order to bring the case within that rule, you must first of all show that the parties did intend that there should be a principal debtor. In this case, seeing that the parties knew that the board was not liable, and that the plaintiff would not go on unless he had the board or the defendant liable, and did not care to have the defendant liable if the board was liable, the facts seem to exclude, and the jury might well find that they excluded, the notion of the defendant becoming surety for a liability, either past, present, or future, upon the part of the board; and they might look upon the defendant's contract as a contract to pay, whether the board have been, are, or shall be liable or not: "Do that work now, and you shall be paid for that work." So that it is a case of principal liability. We were asked by Mr. Cole to look at a variety of points in this case, upon which he suggested that the true result ought to be a new trial, and not the discharging of the rule directing that a nonsuit should be entered; but the arguments upon that head appear to be excluded by the reservation at the trial, which was to enter a nonsuit, if it should appear that there was no evidence, either upon the original declaration or upon the declaration as amended, which ought to have been left to the jury; and the rule was to enter a nonsuit, on the ground that there was no evidence of an original liability on the part of the defendant. No objection was taken to the form in which the question was left. Moreover, the question for the opinion of the Court of Appeal is stated to be, whether or not the defendant is entitled to have a nonsuit entered; that is, whether, at the end of the plaintiff's case, the Lord Chief Baron would have been justified in directing that the plaintiff should be nonsuited. I do not think it necessary to make any further remarks upon the judgment of the Court below. It is quite clear from the report, that the judgment is founded upon the notion of ench a case as I pat to Mr. Charles, namely, the notion that, upon the facts, the parties must be taken to have enpposed the ex- [204 istence of a principal contract with the board, or, taking Mr. 1871. Mountstephen v. Lakeman. Cole's view, with the owners, before there could be any contract arising with the defendant. It is a "supposed liability." The facts are such that the jury might have thought, as I apprehend, correctly, that it was a supposed non-liability of the board that led to what took place between the plaintiff and the defendant. In the judgment of Mr. Justice Blackburn, which I do not presume to criticise, except for the purpose of finding out, as I am bound to do, the reasons on which he proceeded, there is the passage: "We must now take it that the plaintiff, when he agreed to do the work, thought he had got the order of the board, but that he would not have done the work without, in addition to the order of the board through their chairman, the personal promise of the defendant himself that he would see him paid." I am not at all criticising the law as laid down there, except in so far as it conflicts with Birkmyr v. Darnell (1); but dealing with that judgment upon the question of fact, upon which it is founded, I humbly conceive that it assumes the fact differently from what it appears upon the case as laid before us. It assumes that the plaintiff thought he had the order of the board, whereas it appears upon the case that the plaintiff would not go on because he thought he had not got the order of the board. The result appears to be, that the jury might well, upon the evidence, have found an original liability in the defendant, a liability not falling within the provision of the Statute of Frauds. A nonsuit, therefore, could not have been sustained, and we are bound to reverse the judgment. CHANNELL, B. I agree with my Brother Willes in thinking that the judgment of the Court of Queen's Bench must be reversed, and that the verdict must be entered for the plaintiff. KEATING, J. I am of the same opinion. The simple question upon which I deliver an opinion is, that the evidence at the trial was such that the judge might have left to the jury the question, whether there was an undertaking by the defendant in the nature of a primary liability, or whether the defendant's undertaking amounted to a contract of suretyship only, such as 205] would *require a writing under the Statute of Frauds. It appears to me, for the reasons already given by my Brother (1) 1 Salk., 27. Mountstephen v. Lakeman. 1871 Willes in detail, that there was evidence which could not and ought not to have been withheld from the jury as evidence of a primary liability. The Court of Queen's Bench appear to have gone on the fact that there was no such evidence that ought to have been left to the jury, and held that the' want of writing to satisfy the Statute of Frauds was fatal to the plaintiff's case. PIGOTT, B. I cannot say that I have not felt some hesitation in the course of the case, but in the result I have come to the conclusion that there was evidence which the Lord Chief Baron could not have withdrawn from the jury, whether the defendant did give an order and take upon himself a primary liability to pay for this work. The words, "I will see you paid," as it seems to me, may mean either one thing or the other. "I will see you paid," that is," I will pay you," or, "You shall be paid." But I do not think these words are necessarily to be taken in the sense Mr. Cole contended for, as meaning, "I will see that somebody else pays you," or that " your principal debtor pays you; and if he does not, I will be the surety for payment." I do not think that phrase, "I will see you paid," has any hard and fast meaning of that kind; it must depend on the other facts of the case. CLEASBY, B. I have come to the same conclusion. We are to give our judgment upon the case as stated on appeal. It is stated that the opinion of the jury was taken whether the plaintiff's version of the conversation was correct or not, and the jury must be taken to have found that it was. If that conversation did take place, then at the termination of the plaintiff's case, as has been pointed out by my Brother Willes, there was evidence to go to the jury of a primary liability on the part of the defendant. It is very unfortunate that a case should turn upon such a finding of the jury, whether particular words were made use of or not, four or five years ago. Nothing can be more unsatisfactory than attempting to decide the rights of parties upon the legal construction of language, referring to what took place so long ago, where everything may turn on the use of a particular word. But we cannot help *that in this case, and [206 we must take it that those expressions were made use of. Then what we have to deal with is this simple question: Does that 1871 Mountstephen v. Lakeman. conversation, coupled with the surrounding circumstances, warrant the conclusion that the defendant intended to make himself primarily liable, or liable only in the failure of somebody else who was the principal debtor? It seems to me quite clear, from the statement in the case, that there was no question whatever about the employment by the occupiers. The plaintiff would have nothing to do with them. It is quite true, as Mr. Cole has said, that in one sense he wanted to be guaranteed against them; but in reality he would not take them as his employers at all, and therefore he wanted to be secure of payment, in case the work was done; and it seems to me that, at all events, the conversation amounted to evidence that the defendant either promised that the board should order the work, or "you may take it as my order, and I will see you paid;" and this was quite consistent with the plaintiff's conduct afterwards; because he took it as an assurance that the board would give the order, as the defendant was the chairman of the board. It is not necessary to refer to the authorities at all, because if the case has this complexion the authorities do not apply. I think that the conversation is quite capable of this construction, without going so far as to say that is the construction I should have put upon it. That being so, I think we must discharge the rule in the court below. KELLY, C.B. [who had been absent during the argument] Having tried this cause and read the case on appeal, I must say that I entirely concur with the judgment pronounced by this Court. |