1 H. & C. 247. BRADBURY V.

MORGAN 877

[249] BRADBURY AND OTHERS V. MORGAN AND ANOTHER, Executors of Joseph

Manuel Leigh, deceased. June 4, 1862.—Guarantie as follows :—" I request you
will give credit in the usual way of your business to L., and in consideration of
your doing so I hereby engage to guarantee the regular payment of the running
878 BRADBURY V. MORGAN 1 H. & C. 250.

balance of his account with you, until I give you notice to the contrary, to the
extent of 1001. sterling." Held, that the guarantie was not a bare authority,
but a contract, and therefore the executor of the guarantor was liable for goods
supplied after his death.
[S. C. 31 L. J. Ex. 462; 8 Jur. (N. S.) 918; 10 W. E. 776; 7 L. T. 104. Dissented
from, Harriss v. Fawcett, 1873, L. E. 15 Eq. 313. Eeferred to, Earriss v. Fawcett,
1873, L. R. 8 Ch. App. 868. Applied, Dodd v. Whelm, [1897] 1 Ir. E. 575.]
Declaration. That heretofore, and in the lifetime of the said J. M. Leigh, the said
J. M. Leigh contracted, guaranteed, and agreed with the plaintiffs, in the guarantie
hereinafter mentioned called Messrs. Bradbury, Greatorex and Co., in the words and
figures following, that is to say :—
" 3 George Yard, Lombard St.,
"London, May 3, 1858.
" Messrs. Bradbury, Greatorex and Co.
"Gentlemen,—I request that you will give credit in the usual way of your
business to Henry Jones Leigh, of Leather Lane, Holborn; and in consideration of
your doing so, I hereby engage to guarantee the regular payment of the running
balance of his account with you, until I give you notice to the contrary, to the extent
of one hundred pounds sterling.—I remain, &c. " J. M. LEIGH.
"Limit £100."
And the plaintiffs accordingly from time to time credited the said H. J. Leigh in
the usual way of their business; and the running balance of the said H. J. Leigh's
account with the plaintiffs afterwards, and after the death of the said J. M. Leigh, and
before the plaintiffs had any notice or knowledge of such death, and before any such
notice as in the said guarantie was and is made and provided had been given to the
plaintiffs, amounted to a large sum, to wit 1001., and was and is due and unpaid to
the plaintiffs; and [250] all things have been done and happened, and all times have
elapsed, necessary to entitle the plaintiffs to maintain this action. ^
Plea. That the said running balance of the said H. J. Leigh's account was and is
due to the plaintiffs for goods sold and delivered by them, and credits for the same
given by them in the usual way of their business, to the said H. J. Leigh, and not
otherwise; and that the said goods were sold and delivered, and the credits in respect
thereof given, and the debts constituting the said balance of the said account were,
and each of them was, contracted and incurred after the death of the said J. M. Leigh,
and not in his lifetime.
Demurrer and joinder therein.
Beresford (with whom was Hume Williams), in support of the demurrer. The
defendants are liable, as executors, for goods supplied by the plaintiff after the death
of the guarantor. In Williams on Executors, p. 1557, 5th ed., it is said: "The
general rule has been established from very early times, with respect to such personal
claims as are founded upon any obligation, contract, debt, covenant, or other duty,
that the right of action, on which the testator or intestate might have been sued in
his lifetime, survives his death, and is enforceable against his executor or administrator."
Also, at page 1558, it is said : " And there is no difference between a promise to pay
a debt certain, and a promise to do a collateral act which is uncertain and rests only
in damages, as a promise by the testator to give such a fortune with his daughter, to
deliver up a bond, &c. For wherever in those cases the testator himself is liable to
an action, his executors shall be liable also." Again, at page'1559, it is said : " I t is
clear, also, that in many eases a liability may accrue against the executor or adminis-
trator, [251] after the death of the testator or intestate, upon a contract made in his
lifetime, although the executor or administrator be not named therein. Thus the
executor is liable upon a bond which becomes due, or a note payable, subsequently
to the death of the testator. So, where0 a man covenanted that A. should serve B.
as an apprentice for seven years, and died; it was holden that if A. departs within
the term, a writ of covenant lies against the executor of the covenantor, without
naming him. So if A. is bound to build a house for B. before such a time, and A.
dies before the time, his executors are bound to perform this contract." In Siboni v.
Kirkman (1 M. & W. 418, 423), Parke, B., said: "Executors are responsible on all the
1H. &C.252. BRADBURY V. MORGAN 879

contracts of the testator broken in his lifetime, and there is only one exception with
regard to their liability for contracts broken after his death; that is this, that they
are not liable in those cases where personal skill or taste is required." That doctrine
was acted on in Wentworth v. Cock (10 A. & E. 42), where the plaintiffs had agreed to
supply the intestate with a quantity of slate-blocks monthly at a fixed price, and the
intestate had engaged to receive any quantity not exceeding 200 tons per month ; the
agreement to be in force until the 1st of January, 1858; and it was held that the
plaintiff might sue his administrator for refusing to receive slate sent after the death
of the intestate, and before the 1st of January, 1858. Here the guarantie is to con-
tinue in force until determined by notice. There is the following passage in Williams
on Executors, p. 1604, 5th ed., which is no doubt at variance with the position con-
tended for :—" If a man enters into a continuing guaranty and dies, his executor, it
seems, is not liable upon it for advances made after the testator's death, which operates
as a revocation." That passage was first introduced in the 4th edition (p. 1506), and
the authority cited in support of the position [252] is Smith's Mercantile Law, p. 451,
5th ed. There the position is stated in similar terms, and the authorities cited in
support of it are, Potts v. Ward (1 Marsh. 366); Cooper v. Johnson (2 B. & Aid. 394);
Kinguel v. Knapman (Cro. Eliz. 11), and Joyner v. Fyner (Sir T. Raym. 415). Potts
v. Ward was not the case of a contract, but of a reference to arbitration; it merely
decided that the authority of an arbitrator is determined by the death of either party
before the award. Cooper v. Johnson is a decision to the same effect. Kinguel v.
Knapman and Joyner v. Vyner, so far from supporting the position laid down, are
authorities against it. Kinguel v. Knapman was an action of debt on the bond of the
defendant for the performance of an award by a third person; and it was held no
answer that such person died before the time mentioned in the award for payment of
the sum awarded. Joyner v. Vyner was an action of debt against the defendant, as
heir on the bond of his father conditioned for payment to the plaintiff of a sum of
money on a day named, if the obligor failed to prove before that day that a bill
of exchange, for which he had credit in his accounts with the plaintiff, had been paid.
The obligor died before the day appointed for payment of the money, but the heir
was nevertheless held liable on the bond.
J. Brown, in support of the plea. The position laid down in Smith's Mercantile
Law, p. 451, 5th ed., is correct; and this guarantie was revoked by the death of the
testator. No doubt, there are many contracts which cannot be performed by
representatives, such as contracts with authors or scientific persons. This case, how-
ever, is distinguishable from others by the peculiar terms of the guarantie. It amounts
to a mere request, and like every other request [523] is revocable by death. The
guarantor in effect says, " I request you to go on supplying goods until I give you
notice to the contrary." The notice must have reference to the future supply of
goods, for it cannot determine the contract so as to exonerate the guarantor from
liability in respect of goods previously supplied. The guarantie must therefore be
read as a mere request or authority to go on supplying goods until that authority is
revoked. It is purely personal, for the guarantor says until " I give you notice."
[Pollock, C. B. That means " until you receive notice."] Where a man, who had
for some years cohabited with a woman who passed for his wife, went abroad, leaving
her and her family at his residence in this country, and died abroad ; it was held that
the woman might have the same authority to bind him by her contracts for necessaries
as if she had been his wife; but that his executor was not bound to pay for any goods
supplied to her after his death, although before information of his death had been
received: Blades v. Free (9 B. & C. 167). Littledale, J., there said: "There was no
continuing implied contract made by the deceased, but an authority to the woman
with whom he cohabited to make contracts for him from time to time, and at his
death that authority ceased. [Pollock, C. B. That ease turned on this, that the man
having held out to the world that this woman was his wife, she had an jmplied
authority to pledge his credit for necessaries supplied to her and her family, but he
having died the authority was at an end. • There is a wide distinction between a mere
authority and a contract.] Where a man, who had been in the habit.of dealing with
the plaintiff for meat supplied to his house, went abroad, leaving his wife and family
resident in this country, and died abroad; it was held that the wife was not liable for
goods supplied to her after his death but before information of it had been [254]
received, she having had originally full authority to contract, and having done no
880 BRADBURY V. MORGAN l H. & C. 255.

wrong in representing her authority as continuing, nor omitted to state any fact
within her knowledge relating to it; the revocation itself being the act of God, and
the continuance of the life of the principal being equally within the knowledge of
both parties : Siruyut v. llbery (10 M. & W. 1). [Pollock, C. B. The "request" may
be struck out of the guarantie. Suppose it began thus: " In consideration of your
giving credit in the usual way of your business to Henry Leigh, I hereby undertake
to guarantee you the regular payment of the running balance of his account with you,
until I give you notice to the contrary," the legal effect would be the same.] In
Story on Agency, sect. 488, it is said with reference to revocation of authority by
death : "The doctrine seems to be a natural deduction or presumption of the actual
intention of the parties. No doubt, a notice would not determine the liability of the
executors for goods already supplied, because there was a duty on the part of the
testator to pay for them. The distinction between a vested duty and a mere collateral
act is pointed out in Jmjmr v. Vyner (Sir T. Raym. 415). In Mason v. Prikhard
(12 East, 227), the Court construed the guarantie as continuing until determined by
notice. By the Scotch law, a guarantor may determine his liability by notice; but
here the guarantor has expressly reserved that right, and his death operates as a
notice. [Pollock, C. B. The mere fact of insanity would not be a revocation of such
a guarantie.] This case is to some extent new in its circumstances, and it is for the
convenience of all parties that a continuing guarantie of this description should not
operate beyond the life of the guarantor.
Beresford was not called upon to reply.
[255] POLLOCK, C. B. We are all of opinion that the plaintiff is entitled to judg-
ment. No doubt, if this were merely an implied contract which arose from a request,
it would be revoked by the death of either party. Blades v. Free (9 B. & C. 167) is an
authority that a request is revoked, but a contract is not put an end to, by death.
The language here used, " I request you will give credit," is a mere mode of civil
expression, and the party using it never meant to request in that sense which
Mr. Brown has suggested. Instead of saying " I will thank you to give credit;"
or "you will oblige me by giving credit," he says, " I request you will give credit."
Whether his death was contemplated, I do not know. The probability is, that if it
had been suggested the plaintiffs would have required some notice before the
guarantie was determined; but this is a contract, and the question is whether it
is put an end to by the death of the guarantor. There is no direct authority to
that effect; and I think that all reason and authority, such as there is, are against
that proposition, and that the plaintiffs are therefore entitled to judgment.
BRAMWELL, B. I am of the same opinion. The general rule is thus stated in
Williamson Executors (page 1559, 5th ed.):—"The executors or administrators so
completely represent their testator or intestate, with respectto the liabilities above
mentioned, that every bond, or covenant, or contract of the deceased includes them,
although they are not named in the terms of it; for the executors or administrators
of every person are implied in himself." The only exception is where the contract
is in respect of the personal qualification of the testator or intestate, and that does
not apply to the present case. If the guarantie had been in these terms:—" I
request you to deliver to A. to-morrow morning goods of [256] the value of 501.,
and in consideration of your so doing I will pay you," and before the morning the
guarantor died, but the goods were duly delivered; I can see no reason why the
personal representative of the guarantor should not be liable; and whether a
guarantor says, "deliver some goods on a given day,"or "deliver a quantity of goods
upon any day or days," can make no difference. Very likely a tradesman, who would
not trust in the first instance without a guarantie, would not deliver any goods after
the death of the guarantor, but, however that may be, the executor must give some
timely notice in order to put an end to the contract. Mr. Brown relied on the words
" I request you will give credit," but they are of no importance; for this is not a
case of authority given by the deceased.
With respect to the passage in Williams on Executors, p. 1604, it is certainly not
supported by any authority. It is there said, if a man enters into a continuing
guaranty and dies, his executor, it seems, is not liable for advances made after the
testator's death, which operates as a revocation. Reference is made to Smith's
Mercantile Law, p. 451, 5th ed., but not to the authorities there cited; and if those
authorities be looked at, there is no pretence for saying that they justify the proposi-
1 H. & C. 257. 881

tion laid down in that book. Therefore it seems to me that there is no authority to
prevent us from deciding in favour of the plaintiff.
CHANNELL, B. I am also of opinion that the plaintiff is entitled to judgment.
Whether the parties contemplated that the contract should extend beyond the life of
the guarantor, is not the question. I agree with the Lord Chief Baron that the
question is whether this is a case of mere authority or a contract. I am of opinion
that it is a contract, and if so, it is not revoked by the death of the guarantor. A
mere authority is determined by death, [257] but in the case of a contract death
does not in general operate as revocation, but only in exceptional cases, and this is
not within them.
Judgment for the plaintiffs.(a)

(a) See Offord v. Davies, 12 C. B. N. S. 748.