A letter of guarantee, written in the United States, and
addressed to a house in England, must be construed according to the
laws of that country.
Extrinsic evidence may be used to ascertain the true import of
such an agreement, and its construction is matter of law for the
court.
In bonds, with conditions for the performance of duties,
preceded by recitals, the undertaking, although general in its
terms, is limited by the recital.
Commercial letters are not to be construed upon the same
principles as bonds, but ought to receive a fair and reasonable
interpretation according to the true import of the terms, to what
is fairly to be presumed to have been the understanding of the
parties, and the presumption is to be ascertained from the facts
and circumstances accompanying the entire transaction.
The court will not express an opinion upon a matter of defense
which was not brought to the consideration of the court below.
Page 42 U. S. 170
The plaintiffs in this Court, who were also plaintiffs below,
were merchants and partners, trading under the name and firm of
Bell & Grant, and resided in London. The action was brought to
recover the value of five several sets of bills of exchange,
amounting respectively to �385, �318 12
s.
6
d., �1,500, �140, and �3,500, which,
it was alleged, were guaranteed by the defendant.
At the trial of the case in the circuit court, the defendant
pleaded nonassumpsit and the statute of limitations; but the
questions arising under the latter plea were not argued, as the
opinion of the court, upon the guarantee, was against the
plaintiffs.
The facts of the case, according to the evidence, were as
follow:
Prior to the year 1830, George W. & H. Bruen, two sons of
the defendant, had been carrying on commercial business under the
partnership name of G. W. & H. Bruen, in the City of New York.
In that year, they failed, and William H. Thorn succeeded to the
business of the house, George W. Bruen, one of the former partners,
being interested in the business of the said Thorn.
In the year 1831, George W. Bruen also transacted business at
New York in the name of his father, the defendant. There was no
regular established house in the name of the defendant, although
subsequently adventures were conducted in his name. This agency was
carried on under two very extensive powers of attorney, which were
duly recorded, in New York, throughout the years 1831-1834 and part
of 1835, when the defendant was preparing to go to Europe, and the
powers of attorney were revoked.
Early in the year 1831, Thorn had credits furnished to him by
Bell & Grant upon houses in Trieste, Messina, Leghorn, and
Marseilles. On 23 February, 1831, he wrote to Bell & Grant, and
among other things said
"My friends in Marseilles might secure many consignments for me
if I could put them in a situation to make the necessary advances,
and I therefore hope you will oblige me by opening the credit I ask
for, and if you require it, Mr. M. Bruen will give you his
guarantee. I enclose a letter for Messrs. Archias & Co., which
you will forward to
Page 42 U. S. 171
them, should you think proper to open the credit; otherwise I do
not wish you to send it, as it relates entirely to this credit, and
the manner in which the advances are to be made; it is understood
that no more than �2,000 are to be drawn for at anyone time,
and that the credit is then to be considered at an end, until your
advances are covered by remittances from me, when you will again
renew it."
On 22 March, 1831, Bell & Grant acknowledged the receipt of
the above by a letter from which the following is an extract:
"We have received, since the above, your letter of the 23d ult.,
with an enclosure for Messrs. Archias & Co., of Marseilles,
which we forward to them today, with a confirmation of the credit
you give them upon us to the amount of �2,000, for the
purpose of making advances on consignments, and which we will
accordingly thank you to have guaranteed to us, as you propose, by
Mr. Matthias Bruen."
On 23 April, 1831, Mr. Matthias Bruen, the defendant, wrote the
following letter to Bell & Grant:
"New York, 23 April 1831"
"DEAR SIR -- Our mutual friend, Mr. Wm. H. Thorn, has informed
me, that he has a credit for �2,000, given by you in his
favor with Messrs. Archias & Co., to give facilities to his
business at Marseilles. In expressing my obligations to you for the
continuation of your friendship to this gentleman, I take occasion
to state, that you may consider this, as well as any and every
other credit you may open in his favor, as being under my
guarantee."
On the same day, 23 April, Thorn wrote to Bell & Grant a
letter, from which the following is an extract:
"Enclosed you will find Mr. M. Bruen's guarantee, and as you are
now fully secured in any credit you may open for me, I hope you
will consider on the propriety of allowing me to make insurance
here on any goods that may be shipped for my account."
On 14 June, 1831, Bell & Grant acknowledged the receipt of
Bruen's letter as follows:
"MATTHIAS BRUEN, ESQ., New York. -- We are in receipt of your
favor of 23 April, guaranteeing the credit opened on behalf of Mr.
W. H. Thorn, with Messrs. Archias & Co., of Marseilles, for
�2,000, for the purpose of facilitating his business
Page 42 U. S. 172
with that place, and moreover, desiring us to consider, as under
your guarantee, also, all credits existing, or that we may
hereafter open for said friend, of which we take due note. And we
trust that Mr. Thorn, as well as your good self, will have every
reason to be satisfied with the confidence which we feel a pleasure
in assigning to both of you."
It was given in evidence that from 1831 to 1837, Thorn, by means
of the credits opened for him at various places, received
consignments from those places, upon which advances had been made,
and sent remittances, from time to time, to Bell & Grant, in
London.
On 3 March, 1834, Thorn wrote to Bell & Grant as
follows:
"I have informed Messrs. R. Anderson & Co. and Messrs.
Archias & Co. that the times are such as to render consignments
no longer desirable, which I hope will reach them in time to
prevent any further draft on you."
On 7 March, 1834, Bell & Grant wrote to Thorn,
"We beg your reference to the foregoing copy of our letter of
yesterday, and have only at present to add thereto an extract of
what we write today (while communicating with them on other
business) to Messrs. Archias & Co., of Marseilles, recommending
their refraining from pressing shipments to you on consignment
until the State of commercial matters in the United States shall
make business more acceptable than under the recent circumstances
we may presume it would be to you."
"We trust that the next accounts from your side will be less
gloomy, and may enable us, as we shall most readily do in such
case, to place business for you on its former footing."
On 24 April, 1834, Thorn wrote to Bell & Grant:
"I have read what you have been pleased to write to Messrs.
Archias & Co. on the subject of consignments under advances,
which meets my warmest approbation, as you will have seen by my
letter of March 3."
On 21 of October, 1834, Bell & Grant wrote to Thorn:
"Messrs. Archias & Co., of Marseilles, having inquired of
us, under date 9th inst., whether you had opened a credit in their
favor upon us to make advances on shipments to your address, as you
had mentioned to them as your intention of doing, and adding that
they did so in consequence of the prospect they then
Page 42 U. S. 173
had of influencing a consignment to you; we told them by return
of post that although we should be ready at any time to confirm any
such arrangement and were yet without your authority to that
effect, they might consider themselves at liberty to value upon us
for your account to the extent of �2,000 sterling on handing
us the customary shipping documents (as we would have been sorry to
see such business pass your door for want of the facilities in
question), expressing a hope at the same time that they would only
grant such advances on property the sale of which, they felt
assured by their latest advices, would be of ready sale in the New
York market, all of which we trust will meet your entire
approbation. We should have extended the credit in question to the
former sum of �3,000, but that for the present we conceived
you would be better pleased with the lesser amount; you have,
however, only to let us know your wishes in this respect to insure
our conformity thereto."
On 31 October, 1834, Thorn wrote to Bell & Grant:
"I have to request that you will open the following credits for
my account: To Messrs. R. Anderson & Co., Gibraltar, for the
purpose of making advances, per my account, �4,000, to
Messrs. Archias & Co. for the same purpose, �4,000; to
Messrs. Francia, Brothers and Co., of Gibraltar,
�2,500."
On the 3d of December, 1834, Bell & Grant wrote to
Thorn:
"We have now the pleasure of acknowledging the receipt of your
much esteemed favor of 31 October, in compliance with which we have
immediately increased the credits already opened for your account
with Messrs. Robert Anderson & Co., of Gibraltar, and Messrs.
Archias & Co., of Marseilles, to the sum of �4,000 each,
and opened fresh ones of �2,500, say two thousand five
hundred pounds, in favor of Messrs. Francia, Brothers and Co., of
Gibraltar, to enable them to grant advances on consignments to you
from thence and from Malaga."
"And it is moreover understood that so soon as the credits in
favor of the three first-named houses have been used and remitted
for by you, we are to reopen the same accordingly, which shall be
attended to."
One of the bills upon which the suit was brought was drawn under
the above credit by R. Anderson & Co. upon the plaintiffs,
Page 42 U. S. 174
dated on 16 December, 1836, for �318 12
s.
6
d., at ninety days after date, which bill was paid by the
plaintiffs.
On 31 March, 1836, Thorn wrote to Bell & Grant:
"I have sold a large parcel of San Lucas wine, consigned to me
by Messrs. La Cave & Echicopar, per Lurin, which may lead to
further shipments, and as they will require a credit opened to
enable them to make advances, you will please authorize them to
draw on you, on the usual conditions, to the extent of
�2,500, say two thousand five hundred pounds."
Another of the bills upon which the suit was brought was drawn
under this credit by La Cave & Echicopar upon the plaintiffs,
dated on 22 November 1836, for �385 sterling, which was paid
by the plaintiffs at maturity.
On 15 August, 1836, Thorn wrote to Bell & Grant:
"I intend to send a vessel to Smyrna for an assorted cargo, and
will thank you to open a credit to Messrs. G. Amac, Zipcey and Co.,
to that place, to the extent of �3,500."
Two other of the bills upon which the suit was brought, were
drawn upon the credit thus opened, by Amac, Zipcey and Co. upon the
plaintiffs, dated on 7 January, 1837, one for �1590, and the
other for �140, which were paid at maturity.
In November, 1836, the defendant went to Europe, and did not
return until the following August. During his absence he was in
London, where he saw the plaintiffs several times.
On 16 February, 1837, G. F. Darby, the agent of the plaintiffs
residing in New York, drew bills of exchange upon them to the
amount of �4,000 sterling, which bills he loaned to Thorn,
upon collateral security and the guarantee of G. W. Bruen.
On 8 March, 1837, Thorn wrote to Bell & Grant:
"As this remittance will very nearly balance my old account, I
have prevailed on Mr. Darby to open me a credit similar to the
last, and on the same conditions, for �3,500, which shall be
punctually provided for on 8 May next, if not sooner."
On the same day, four of the bills upon which the suit was
brought were drawn upon the credit thus opened, which amounted, in
the whole, to �3,500, and were accepted and paid when due by
the plaintiffs. These bills were guaranteed by George W. Bruen, the
same person who had guaranteed the loaned bills for
Page 42 U. S. 175
�4,000, and who at this time was in good credit and could
have raised �4,000 on his notes.
On 10 April, 1837, Thorn failed and was insolvent and the means
of his house exhausted.
On 26 November, 1839, Grant, then in New York, wrote to the
defendant, applying to him for the balance due to his London firm
and saying
"Any further explanation you may require I am ready to give, but
I must request your attention in the meanwhile to the above claim,
which I make under your letter of guarantee to Bell & Grant,
for any credits they might open in favor of Mr. Thorn, and of which
letter I sent you a copy, at your request, last February
twelve-month."
In the trial of the cause in the court below, the plaintiffs
proved by the evidence of one Schenck that he was for many years
the cashier of Bell & Grant, and greatly in their confidence;
that he was well acquainted with their daily mercantile operations;
that as well from his perusal at the time of the letters which were
received and written by them on the subject of their account and
transactions with Thorn as also from various conversations which he
had with them and the directions which he received with regard to
the bills, he had no doubt whatever but that the credits given to
the various houses who drew the bills were given by Bell &
Grant in full reliance on the letter of guarantee which had been
written to them by the defendant.
The evidence being closed in the court below, the counsel of the
defendant prayed the court to instruct the jury, among other
things, as matter of law that the letter of guarantee of April 23,
1831, was void, as not expressing a consideration; that the said
letter of guarantee was confined to credits to be opened to the
house of Archias & Co. or other houses with whom Thorn might
deal at Marseilles, and therefore could not cover the advances upon
the bills of exchange given in evidence. And thereupon the judges
did declare their opinion and decide as matter of law that by the
true construction of the said letter of guarantee of April 23,
1831, the same only embraced credits which should be opened for
account of William H. Thorn to the house of Archias & Co. of
Marseilles, and that the evidence
Page 42 U. S. 176
of the other matters in that behalf proved did not give the said
letter of guarantee a more enlarged application, and therefore that
the jury ought to find a verdict for the defendant.
To this instruction the plaintiffs' counsel excepted.
Page 42 U. S. 180
MR. JUSTICE CATRON delivered the opinion of the Court.
The original action was founded upon a guarantee given by
Matthias Bruen to Bell & Grant, in favor of Wm. H. Thorn, by
the following letter:
"New York, 23 April, 1831"
"MESSRS. BELL AND GRANT, London. -- DEAR SIRS: Our mutual
friend, Mr. Wm. H. Thorn, has informed me that he has a credit for
�2,000, given by you in his favor with Messrs. Archias
Page 42 U. S. 181
& Co., to give facilities to his business at Marseilles. In
expressing my obligations to you for the continuation of your
friendship to this gentleman, I take occasion to state, that you
may consider this as well as any and every other credit you may
open in his favor as being under my guarantee."
I am, dear sirs, your friend and servant,
"M. BRUEN"
To this letter the following answer was given by Bell &
Grant:
"London, 14 June, 1831"
"MATTHIAS BRUEN, Esq., New York."
"We are in the receipt of your favor of 23 April guaranteeing
the credit opened on behalf of Mr. Wm. H. Thorn with Messrs.
Archias & Co., of Marseilles, for �2,000 for the purpose
of facilitating his business with that place, and moreover desiring
us to consider as under your guarantee also all credits existing or
that we may hereafter open for said friend, of which we take due
note. And we trust that Mr. Thorn, as well as your good self will
have every reason to be satisfied with the confidence which we feel
a pleasure in assigning to both of you."
The declaration contains four counts:
1. That the plaintiffs, on 31 March, 1836, were requested by
Thorn to open a credit in his favor, authorizing the firm of La
Cave & Echicopar, of Cadiz, to draw on the plaintiffs to the
extent of �2,500. That on 22 November, 1836, La C. & E.
drew for �385, which was advanced on 12 February, 1837, by
the plaintiffs, according to Thorn's request.
2. That on 10 October, 1834, at the request of Thorn, a credit
was opened in his favor, authorizing R. Anderson & Co., of
Gibraltar, to draw for �4,000. On 16 December, 1834,
Anderson & Co. drew for �318 12
s. 6
d.,
which plaintiffs paid 19 March, 1837.
3. That on 15 August, 1836, the plaintiffs opened a credit in
favor of Thorn, authorizing Amac, Zipcey and Co., of Smyrna, to
draw for �3,500. Of this sum, the house at Smyrna drew
�1,640, which plaintiffs paid 8 April, 1837.
4. That on 8 March, 1837, plaintiffs opened a credit to Thorn
himself for �3,500, for which amount he drew bills, and
which were paid 17 June, 1837.
Much other correspondence and evidence was given to the
Page 42 U. S. 182
jury that need not at present be referred to, but which appears
in the statement of the case made out by the reporter and presented
to us.
The evidence being closed, the defendant prayed the circuit
court to instruct the jury as matter of law that the letter of
guarantee of April 23, 1831, was confined to credits to be opened
to the house of Archias & Co. or other houses with whom Thorn
might deal at Marseilles, and therefore the plaintiffs could not
recover from the defendant the advances made upon the bills of
exchange given in evidence, being for the sums paid as stated in
the four counts of the declaration.
Thereupon the court did decide as matter of law
"That by the true construction of the said letter of guarantee
of April 23, 1831, the same only embraced credits which should be
opened for account of Wm. H. Thorn to the house of Archias &
Co., of Marseilles, and that the evidence of the other matters in
this behalf proved did not give the said letter of guarantee a more
enlarged application. And therefore that the jury ought to find a
verdict for the defendant."
The jury found accordingly, and it is this instruction of the
court alone that we are called upon to examine and revise. Does the
letter of guarantee extend to and cover the debts of Wm. H. Thorn
sued for is the question. It was an engagement to be executed in
England, and must be construed and have effect, according to the
laws of that country.
Bank of the United States v.
Daniel, 12 Pet. 54-55. But it is necessary to
remark that the law governing the agreement is the same in this
country and in England. Had it been made between merchants of
different states of this Union and intended to be executed at home,
the same rules of construction would be adopted and the same
adjudications would apply.
It is insisted for the plaintiffs that the circuit court erred
in determining the question absolutely as a question of law, upon
the construction of the letter; that it also erred in declaring the
other circumstances did not allow of an application of the
guarantee to the transactions in question; such other circumstances
being admitted, their effect on the extent and application of the
guarantee was for the jury, and by deciding on their effect as
matter of law, they were withdrawn from the jury.
Page 42 U. S. 183
The letter of Bruen was an agreement to pay the debt of another
on his making default. By the statute of frauds, 29 Chs. 2, such
agreement must be in writing and signed by the party to be charged.
It cannot be added to by verbal evidence, nor by written either if
not signed by the guarantor, unless the written evidence is, by a
reference in the letter, adopted as part of it.
But as the statute does not prescribe the form of a binding
agreement, it is sufficient that the natural parts of it appear
either expressed or clearly to be implied, and correspondence and
other evidence may be used to ascertain the true import and
application of the agreement, by the aid of which extrinsic
evidence the proper construction may be made. Such is the doctrine
of this Court, as will be seen by reference to the cases of
Drummond v.
Prestman, 12 Wheat. 515;
Douglass
v. Reynolds, 7 Pet. 113;
Lee v.
Dick, 10 Pet. 482.
In the present instance, the question having arisen and
construction been called for, the matters referred to in the letter
of the defendant were considered as circumstances attending the
transaction to aid the court in arriving at a proper understanding
of the engagement. So soon as it was understood, its construction
belonged to the court, and was "matter of law" within the general
rule applicable to all written instruments. It rested with the
court to decide whether the guarantee extended to and covered the
credits set forth in the declaration, and was the common case of
asking the court to instruct the jury that the plaintiff had not
proved enough to entitle him to recovery, admitting all his
evidence to be true. In England, the same end is attained by moving
for a nonsuit.
For the defendant it is contended that the letter of April 21,
1831, is a contract, preceded by a recital, and that the engagement
extends no further than the recital.
The recital introduces in direct terms, or by reference, the
entire arrangement made between plaintiffs and Thorn by the letters
of 23 February, 1831, and March 22, 1831, and the words "this
credit," in the defendant's letter of 23 April, 1831, mean the
first �2,000, and the words "and any and every other credit"
mean the subsequent credits, to be opened under the same
arrangement.
The general rule is well settled in controversies arising on
the
Page 42 U. S. 184
construction of bonds with conditions for the performance of
duties, preceded by recitals; that where the undertaking is
general, it shall be restrained and its obligatory force limited
within the recitals. The leading case is
Arlington v.
Merricke, 2 Saund. 403. It has been followed by many others:
Liverpool Waterwork Co. v. Harpley, 6 East 507;
Wardens v. Bostock, 2 Bos. & P. 175;
Leadley v.
Evans, 2 Bingh. 32;
Pepin v. Cooper, 2 Barn. & A.
431, are some of the principal cases affirming the rule.
Where a mercantile guarantee, is preceded by a recital, definite
in its terms; and to which the general words obviously refer, the
same rule applies, of limiting the liability, within the terms of
the recital, in restraint of the general words. We find the courts
constantly referring to the cases arising on bonds with conditions,
for the rule of construction, and applying it to commercial
guarantees; the most approved text writers on this subject do the
same: does the engagement before us fall within the rule? It
recites:
"Our mutual friend, William H. Thorn, has informed me that he
has a credit for two thousand pounds, given by you in his favor
with Messrs. Archias & Co., to give facilities to his business
at Marseilles."
The agreement is: "I take occasion to state that you may
consider this, as well as any and every other credit you may open
in his favor, as being under my guarantee."
We are of opinion that the engagement should be construed as if
it read
"You may consider this credit with Archias & Co. as being
under my guarantee, as well as any and every other credit you may
open in favor of William H. Thorn with any and every other person,
as also being under my guarantee."
And that therefore the first branch of the undertaking has
reference to the recital, and that the latter part is independent
of it. To hold otherwise would reject the general words "as well as
any and every other credit" as unmeaning and useless: the agreement
having the same effect, by the construction claimed for the
defendant, if these words were struck out as if they are left in
it.
The general words, it is insisted, related to the character of
the credit opened with Archias & Co., because it was an open
and continuing credit, for �2,000. That this appears by the
letters
Page 42 U. S. 185
of Thorn to Bell & Grant, and to Archias & Co., which
are sufficiently referred to in the recital of the letter to make
them part thereof, and to extend it to the continuing credit with
Archias & Co.
That the two letters of Thorn were sufficiently referred to and
could be read to establish the nature of the credit and that it was
open we have no doubt, but their adoption was just as certain
without the general words as with them. The special reference to
the recital, adopting it as explained by the letters, leaves the
general words still without meaning unless the guarantee extends
beyond the credit opened with Archias & Co.
To make a proper application of the general words, it becomes
necessary to lay down a definite rule of construction applicable to
them; as the authorities are in conflict, and to say the least, in
considerable confusion, on the subject. The arguments are in direct
conflict.
For the plaintiffs in error (Bell & Grant) it is
contended:
"That the guarantee by letters is to be taken, in case of doubt
or ambiguity, on its face or otherwise, in the broadest sense which
its language allows and in which it has been acted on by the
parties."
Drummond v.
Prestman, 12 Wheat. 515;
Douglass
v. Reynolds, 7 Pet. 113;
Dick v.
Lee, 10 Pet. 482;
Mauran v.
Bullus, 16 Pet. 528;
Mason v. Pritchard,
12 East;
Merle v. Wells, 2 Campb. 413;
Bent v.
Hartshorne, 1 Metcalfe;
Hargreave v. Smee, 6 Bingh.;
10 Eng.Com.Law 69;
Mayer v. Isaac, 6 Mees. & W.; and
Bastow v. Bennet, 3 Campb., are relied on, to support the
construction claimed as the true one.
On part of the defendant (Bruen), it is insisted
"That the apparent diversity of terms between the recital and
the engagement in the defendant's letter raises a doubt upon the
face of the guarantee as to its true extent, and upon the doubt
thus raised the construction will be in favor of the surety."
The following authorities are relied on to sustain the
construction here claimed: Pothier on Obligations, part 2, sec. 34;
Code Napoleon, art. 2011, 2015;
Russell v.
Clarke, 7 Cranch 69; 1 Mason 336; 2 Caines' Cases
in Error 29, 49; 10 Johns. 180, 325; 8 Wend. 516; 7 Wend. 422; 2
Pick. 234;
41 U. S. 16
Pet. 537; 1 Stark. 192; 8 Taunt. 224; 3 B. & A. 594-595; 1
Crompt. & Mees. 52, 54; 3 Wilson 530; 1 Term 287; 2 So.
370;
Page 42 U. S. 186
3 East 484; 4 Taunt. 673; 8 Moore 588; 1 Perry & D. 249; 10
Adolph. & Ellis, 30.
The adjudged cases referred to, giving a construction to bonds
with conditions and contracts made directly between debtor and
creditor, afford little aid in arriving at the true understanding
of a commercial guarantee. Bonds, &c., are entered into with
caution, and often after taking legal advice; they contain the
entire contract, beyond which the courts rarely look for
circumstances to aid, in their construction. And if there be
sureties bound by them and the meaning is doubtful, the
construction is restricted and made most favorable to the sureties.
Such is the result of the authorities cited for the defendant.
On the other hand, letters of guarantee are (usually) written by
merchants, rarely with caution, and scarcely ever with precision;
they refer in most cases, as in the present, to various
circumstances, and extensive commercial dealings in the briefest
and most casual manner, without any regard to form, leaving much to
inference and their meaning open to ascertainment from extrinsic
circumstances and facts, accompanying the transaction, without
referring to which they could rarely be properly understood by
merchants or by courts of justice. The attempt, therefore, to bring
them to a standard of construction founded on principles neither
known or regarded by the writers could not do otherwise than
produce confusion. Such has been the consequence of the attempt to
subject this description of commercial engagement to the same rules
of interpretation applicable to bonds and similar precise
contracts. Of the fallacy of which attempt the investigation of
this cause has furnished a striking and instructive instance. These
are considerations applicable to both of the arguments.
The construction contended for as the true one on part of the
plaintiffs is that the letter of the defendant must be taken in the
broadest sense which its language allows, thereby to widen its
application. To assert this as a general principle would so often
and so surely violate the intention of the guarantor that it is
rejected. We think the court should adopt the construction which,
under all the circumstances of the case, ascribes the most
reasonable, probable, and natural conduct to the parties. In the
language of this Court in
Douglass v.
Reynolds, 7 Pet. 122,
Page 42 U. S. 187
"Every instrument of this sort ought to receive a fair and
reasonable interpretation according to the true import of its
terms. It being an engagement for the debt of another, there is
certainly no reason for giving it an expanded signification, or
liberal construction beyond the fair import of the terms."
Or it is to be construed according to what is fairly to be
presumed, to have been the understanding of the parties, without
any strict technical nicety, as declared in
Dick
v. Lee, 10 Pet. 493. The presumption is of course
to be ascertained from the facts and circumstances accompanying the
entire transaction. We hold these to be the proper rules of
interpretation, applicable to the letter before us.
The general words not being restricted by the recital, they
fairly import that Matthias Bruen was bound to Bell & Grant for
the credits they opened in favor of William H. Thorn with Archias
& Co., and for the credits also they opened in favor of Thorn
with any and every other person covering those set forth in the
three first counts in the declaration, and we think that the
circuit court erred by instructing the jury to the contrary.
Whether the guarantee covered the credit extended to Thorn
himself directly it is not thought necessary to inquire, as no
argument was founded on such an assumption; Thorn, who was
introduced as a witness in the circuit court by the plaintiffs, on
his cross-examination declared, that the �3,500 mentioned in
the last count in the declaration "had no relation whatever to the
guarantee of the defendant," it being under the guarantee of a
different person.
It was insisted also that when Thorn failed and the dealings
between him and the plaintiffs ceased, they were bound to notify
the guarantor of the existence of the debts due them by Thorn, and
for which Bruen was held liable, in a reasonable time after the
dealings ceased; that Thorn failed April 10, 1837, and the notice
was not given until December 31, 1838, the debts sued for in the
three first counts of the declaration being then due; therefore the
notice was too late, and the defendant discharged.
The record shows that this ground of defense was not brought to
the consideration of the circuit court; we do not, therefore, feel
ourselves at liberty to express any opinion upon the question.
Page 42 U. S. 188
Again, it is insisted the original arrangement made between the
plaintiffs and Thorn in March, 1831, was subsequently, in the
spring of 1834, abandoned and deserted, and in the autumn following
a new and inconsistent one, enlarging the credits to be given and
diminishing the security, was made rendering notice to the
defendant necessary, but to which no notice could have given legal
effect to charge the defendant for subsequent credits.
To this and all other questions raised here on which the court
below was not called to express any opinion we can only give the
same answer given to the next preceding supposed ground of
defense.
It is ordered that the judgment of the circuit court be
reversed and the cause remanded for another trial thereof.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court, with directions to award
a
venire facias de novo.
