Hutchinson v. Keikiohua, 4 Haw. 47

Hutchinson v. Keikiohua

4 Haw. 47 | Haw. | 1877

Opinion of the' Court by

Judd,,J.

The facts of this case are that a laborer engaged by a *48written- contract to serve the plaintiff at Hawaii for a term of two years at $10 per month, and received $100 as advance-upon the wages to* accrue under the contract; that the defendant brought the laborer to plaintiff’s agent in Honolulu*, and took part In the negotiations for his hiring, and signed the contract as “witness and security.” Defendant represented that the laborer was not then bound by any other contract, and undertook that the laborer should proceed from: Honolulu by a vessel to be- designated to- plaintiff’s plantation, and agreed that in case of his not going; or if it should turn out to be that the laborer was under prior obligations,, defendant would return the amount of $100 advanced. That plaintiff’s agent was induced to make the- advance on the-contract on the guaranty of. the defendant to return the money in case of failure of the laborer to fulfill the-contract. It was also proved that there was a,failure-on the part of the-laborer to perform his contract, his-services being claimed by another employer under a prior labor contract not yet expired. It appeared also hy the evidence of the acknowledging officer that $30 of this $100 advanced was kept by the defendant as a pledge that the laborer would go to Hawaii when requested, and the laborer testifies that finally the defendant got all the $100 from him but $10.. The plaintiff paid out $5 for stamps and fees for acknowledgment.

The action, is- brought to recover of the defendant, on his guaranty, the $105 advanced to the laborer, and the question of law on which this appeal comes up, is, whether the evidence discloses a consideration moving from plaintiff to defendant.

BY THE COURT.

In our opinion the word “security” written on the'face-of the contract with the signature of the defendant below is a. sufficient note or memorandum: in writing to charge the- defendant on his special promise to answer for the debt or- default of the laborer.

*49As to the consideration, Section 1054 of the Civil Code enacts that th.e consideration of such promise,. &c., need not be in writing, but may be proved by any other legal evidence. Was there such a consideration? In Minet, ex parte, 14 Vesey, Jr., 189, Lord Eldon said “that the undertaking of one man for the debt of another does not require a consideration moving between them.” This has been explained to mean that no new consideration is required.

Chancellor Kent, in Leonard vs. Vredenburgh, 8 Johnson, 28, held that where the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor, there is not, nor need be, any other consideration than that moving between the creditor and the original debtor. So also Browne Statute of Frauds, Chapter X., on Guaranties.

That a consideration passed from the plaintiff to the laborer, the principal debtor, is clear. The plaintiff advanced $100, on the engagement that it should be repaid by the direct debtor in labor at the rate of $10 per month. The undertaking by the defendant that the laborer would fulfill this engagement was an essential ground for the plaintiff’s advancing the money to the laborer. The original consideration therefore supports or is the aliment for-the promise of the defendant.

“ The extent of the- undertaking-, the- expressions used, the situation of the parties, and all the circumstances of the case,” (see Browne Statute of Frauds, Sec. 199) show that the plaintiff’s agent gave credit to the laborer on the guaranty of the defendant. The two obligations were concurrent, and made at the same time. The promise of the defendant was incorporated with and became an essential part of the original contract.

In addition to this, if it be true that the defendant has actually received' and' appropriated nearly the- entire amount *50of the advance it would be- a substantial consideration moving, to him.

W. R. Castle for plaintiff. Honolulu, November 1, 1877.

Our judgment is that there was a consideration. The judgment of the Police Court is therefore set aside and the case is remanded to that Court for judgment in accordance with this-decision.

In the case of Alex. Hutchinson vs. Nakookoo the same-judgment is made.