Caton v. Shaw & Tiffany

2 H. & G. 13

• Court: Court of Appeals of Maryland
• Decided: June 15, 1827
• Status: Published

Opinion

Archer, J.

delivered the opinion of the court. It is contended, that the court below should, upon the first bill of exceptions, have directed the jury that the plaintiffs were not entitled to recover, because the guaranty was not accepted by the plaintiffs below; but that the sum advanced must have been loaned solely upon the responsibility of .Fenn, in whose favour the guaranty' was given. This must depend upon the fact whether there beany evidence from which the jury might have been justified in drawing the inference that the guaranty was accepted. If there he any', the court below were right in refusing the direction, as it is the province of the jury to judge of the weight and sufficiency of evidence, and only for the court to determine whether there be any evidence. Now there were circumstances from which the jury might have been justified in drawing the inference that the guaranty was accepted. The refusal of the plaintiffs to lend money without security; their willingness, previously expressed, to lend on Cat on’s security, (which facts are to bo inferred from the evidence of Fenn;) their loaning within a short time after the receipt of the guaranty; their retaining it, and placing it away with promissory notes and evidences of debts due them — These were all facts proper to go the jury, for the purpose of showing the loan of the money on the security and responsibility of C at on’s letter. It is true that Shaw, when the letter was communicated to him, was understood to say, that he would have nothing to do with Caion in monied transactions, or to have used expressions conveying some such idea. This seems to have been the expression of the first impression upon the presentation of the letter, which not having been communicated, as appears by any evidence in the eause, to Catón, could not preclude turn, or him and his partner Tiffany, from advancing the money two days after upon the strength of the guaranty. It was retained by them, and the money loaned on the second day afterwards; they were not bound to accept immediately, but they might have kept the letter for inquiry and consideration, notwithstanding the expression of Shaw on its first receipt. Although nothing was said, when the money was loaned, of the lending upon the security of Caton’s letter; yet as the letter was retained, and the money actually advanced, it was properly a question, under all the circumstances, to be submitted to the consideration of the jury. But it is said that notice of acceptance, and notice of the extent of advances by the plaintiffs, should have been given to enable them to recover against the defendant; and this objection is grounded on the idea that this is a mere overture or offer to guarantee. If it is to be considered as a guaranty, there is an end of the objection. None of the authorities in such an event deemed such notice at all necessary. In the case of an offer to guarantee, it was determined in M‘Iver v Richardson, 1 Maule & Selwyn, 563, that notice should be given, that if was regarded as a guaranty, and meant to be accepted, or that there should have been a subsequent assent, on the part of him who made the overture, to convert that, which was merely intended as an offer, into a conclusive guarantee. This doctrine has been adopted in New York. This then being the law, we are brought to the question, whether the letter of Mr. Catón, which furnishes the foundation of this suit, is to be considered as an offer, or as a guaranty? We are at no loss here, as were the court, in the case of M'Iver v Richardson, to ascertain the circumstances which gave rise to the letter, or under what representation he signed it. He was explicitly informed, that upon his security, the plaintiffs would lend the money; and declaring his willingness to go the security to enable Fenn to procure the loan, he addresses, under these circumstances, the letter which is the subject of controversy.

He was then perfectly aware, that upon his letter the money would be obtained. He was apprized before he wrote it that it wrouId be accepted, and he had declared his determination to become Penn’s security. With this information, and in this spirit, he prepares and delivers the letter. Its language appears to be very explicit. We will advert to it. “Mr. J1* Penn tells me that he is about to loan from you five hundred dollars, and wishes me to state that. I will become his eventual security for the payment; this I am willing to do, as I have found him punctual on similar occasions.” The substance of the letter is this: “I will become his eventual security for payment.” Here is then no conditional engagement, but a conclusive undertaking. In M‘Iver v Richardson, the court considered the paper there offered as a proposition only leading to a guarantee. The words do not here import that if application were made to him he would guarantee; it required no intimation that it was regarded as a guaranty, for it spoke so intelligible a language that it could not ho mistaken; and it is shown by the evidence that it conveyed to the plaintiffs the idea intended, which was, that he would be security for money loaned to the amount mentioned in the letter.

The second bill of exceptions is founded on the idea that the loan of bank notes, at a greater discount than the legal interest on the note for the time it had to run, was usurious. There, cannot he a question but that the loan of bank notes passing at from 2 to 5 per cent discount, and passing them in such loan, notwithstanding such discount, at their par or nominal value, unexplained by circumstances, would he usurious, and that it would render the contract between Penn and the plaintiffs void; for the courts will not permit the statute to be evaded by any devices, however subtle or artful, hut. will pursue the transaction through all its ramifications, for the purpose of discovering whether a loan of money at an exorbitant interest, and an evasion of the statute, has not been the real object and design of the parlies; and they must be governed by such design or intention, when it shall have boon collected from all the circumstances. No usurious intent can be here attributed to the plaintiffs. They take Fcnn’s note for the par value of the bank notes loaned, but at the same time inform him, that if he should not use them he was at liberty to return them, and he should be credited at their par value. From which the inference is clearly deducible, that they had no intention that they should be passed for less than their nominal amount; this fact, taken in connection with their habit, as proven, of taking such notes to be passed at par, evidence a clear manifestation of the nonexistence of any usurious design. It was always in.the borrower’s power to exempt himself from a loss upon these notes by returning them to the plaintiffs, who had stipulated, whenever this was done, to credit him with their nominal amount. This he did not think proper to do, but through his agent passed them off at a discount; having done so, he could not rid himself from the payment by alleging usury in the transaction, unless indeed this privilege had been a mere cover to cloak the usurious design of the parties, for which there is not the slightest ground for inference or belief. We conceive, therefore, that no error exists in either direction'of the court.

JUDGMENT AEEIRMED.