Hall v. Rand

8 Conn. 560

• Court: Supreme Court of Connecticut
• Decided: July 15, 1831
• Status: Published

Opinion

Hosmer, Ch. J.

The minor points in this case may by despatched in a few words.

The plaintiff, unquestionably, was authorized, by the defendant, to indorse the notes of Cooper, by an attorney. On any construction, the agreement to indorse was certain; and the act required the exercise of neither judgment nor discretion. It was a fixed fact, and capable of delegation. Pal. Ag. passim.

To notify the defendant of the indorsements, when made, was no part of the plaintiff’s duty, enjoined by law or required by the agreement; nor was the defendant, in any sense, an indorser of the notes in question, and entitled to strict notice of their dishonour. The stipulation to pay in the same manner and time, in which the defendant would be obliged to pay “provided he was joint indorser of the notes,” implies, that he was not an indorser, a fact perfectly obvious; and this superfluous engagement was only intended to define the extent of the obligation, and not the manner of the plaintiff’s proceeding.

Whether either count in the plaintiff’s declaration was adapted to the proof in the case, the result to which I have come, renders it unnecessary to determine.

The case presents two important questions; the first, whether the written agreement of the defendant is, on its face, a continuing guaranty ; and the second, whether in order to give it a construction, the parol testimony received, was admissible.

In reply to the first question, I think it clear, that the written agreement, on its face, was not a continuing guaranty, but was limited to the indorsement of notes, once only, to the amount of 4000 dollars.

The real inquiry is, what was the intention of the defendant; and to ascertain this, his words must be taken in their plain, popular and obvious sense. That is the true meaning of the contract, which readily presents itself to a plain man of common understanding, on reading it attentively and impartially, and not that which is elaborated with effort. The terms being understood, the image of them will, naturally and with little exertion, be stamped upon the mind It is an unfounded position, that in the construction of mercantile agreements, a peculiar liberality should be exercised. This unquestionable error was effectually refuted, by Lord Ellenborough, in Robertson v. French, 4 East 135.; and in this there exists no difficulty, unless the English language, when used in the commercial world, has a meaning different from what it has, when employed by others ; or unless the intention of merchants is ascertainable through a different medium from the intention of other men. It is when terms are used, which, by a particular class of persons, are known and understood in a special and peculiar sense, that evidence is admissible to interpret their meaning, just as if they were a foreign language. But beyond this the principle does not extend. Merchants may adopt technical terms, and may affix what weight and value they please to words and tokens of, their own peculiar coinage; but if, as in this case, they use plain and ordinary words and expressions, to which usage has given an unequivocal meaning, their intendment must, in all cases, be uniform ; nor can their meaning be altered, even by a mercantile understanding and usage to the contrary. 3 Stark. Ev. 1033 to 1037.

The agreement in question is not to be construed most favourably for the defendant, nor most strongly against him. Both plaintiff and defendant are co-sureties; and hence the former rule is applicable; and the latter is of dernier resort, and to be recurred to, only when all other rules of construetion fail.

I will mention but one more rule of construction. Words are always to be understood in reference to the subject matter of an agreement; as the same expression, when applied to different subjects, sometimes admits of different intendments.

I now proceed to a construction of the contract. It is expressed with unusual precision, and comprises the consideration, the subject matter and the stipulation of the agreement.

The consideration appears from the whole tenor of the writing. It authorizes the plaintiff to indorse the notes of Cooper, on the joint responsibility of the parties ; and requires no proof aliunde to show, that the consideration was legal and sufficient. The performance of an act, by the authority or upon the request of a person, which may be attended with loss or prejudice, is an unquestionable consideration. 1 Pow. on Contr. 344.

The subject matter of the agreement was not merely alluded to, but was embodied on the face of the waiting: “Whereas Mr. Joel Mall has agreed to indorse Samuel Cooper’s notes, at the Middletown Bank, to the amount of 4000 dollars.’’ The above expression, introduced by the emphatic word “Whereas,” gives to the agreement all the precision of a bond with condition. The object of it was, to impart a completeness to the contract, and to display the precise intention of the agreement. The mark at which the stipulation was directed—the whole of it, and not a part of it—was thus set up; and all the words of the contract were exclusively aimed at it.

In reference to the subject—that is, the agreement of Hall to indorse notes to the amount of 4000 dollars, and nothing else— next succeeds this stipulation: “I agree to be responsible to said Hall for one half the amount of any loss he may sustain, by said indorsements.” I ask, by what indorsements? The agreement, on its face, gives the answer: indorsements of notes to the amount of 4000 dollars. It is extremely difficult, by the use of plain language, admitting of a single meaning only, to render an agreement more definite than this, and more limited to one transaction, unless by the unnecessary use of a negative, in a case where it is clearly implied, The construction, undoubtedly, is this: I agree to be responsible on your indorsement of notes to the amount of 4000 dollars; and I agree to nothing more. This exposition is inevitable, unless it be admitted, that a contract may be carried beyond the plain meaning of its terms.

The subject matter expressed gives no unusual extent to the words of the agreement. It displays, on the part of Hall, an obligation to indorse notes only to the amount of 4000 dollars. Had the stipulation been to imdemnify against the indorsement of a note to the above amount, it could not, with any propriety, be contended, that more than one note could be indorsed on the credit of the agreement. The contract to indemnify against the indorsement of notes to a similar amount, requires the same construction. The only difference between the cases regards the manner in which the plaintiff may perform the act; in one instance, by indorsing a note, and in the other, by indorsing notes. But the obligation assumed is the same. It is limited by the amount to be indorsed, which is a most essential part of the agreement. But the amount, in both cases, is the same ; and it cannot be transcended. But the indorsements of notes to the amount of 4000 dollars, and the indorsement of other notes to the amount of 4000 dollars, is an indorsement of these instruments to the amount of 8000 dollars.

The construction I have given is confirmed, by an obvious consideration, that if more had been intended, more would have been expressed. The expression would have been thus: Whereas Joel Hall has agreed to indorse, from time to time, the notes of Samuel Cooper, not to exceed, in existence at any one time, the amount of 4000 dollars. Why was not the contract thus expressed? Plainly because it was not thus intended.

The obligation, which the plaintiff had assumed, is expressed in the most clear and unequivocal terms, of which the English language admits; and so is the stipulation of the defendant in reference to it. There exists no doubt as to their meaning, so long as we adhere to the intendment of the plainest terms, established by the frequent use of them daily and constantly. If a person were to meet another, and to say, “I have agreed to indorse the notes of S. Cooper, payable at the Middletown Bank, to the amount of 4000 dollars;” what would he understand? That notes to this amount only were to be indorsed. Would there be a question arising in the mind of the person addressed: Is be to indorse once, twice or repeatedly? It is impossible. If these few plain words are ambiguous, then every expresion is of this description; for one more definite and limited can not be made.

The meaning of the words being once established, every other part of the construction is of course. The writing contains a promise, that if there be loss, there shall be an indemnity to one half the amount.

That the notes were to be indorsed to the bank, can make no difference in the construction. Such notes are sometimes renewed in toto; and sometimes they are renewable on part payment. But, in both instances, it is the result of a special agreement, either proved explicitly, or inferred from the usage of the bank. Besides, if the practice were, on good security, to renew notes at the bank, indefinitely, it would make no difference in the case. The defendant would be responsible to the extent of his contract only; and in Peters v. Goodrich, 3 Conn. Rep. 146. it was held, by this Court, that an agreement to idemnify a person from his indorsement on a promissory note, discounted at the bank, did not extend to the indorsement of the renewal notes.

The cases cited in the argument fully confirm the exposition given.

The case of Rapelye & al. v. Bailey, 5 Conn. Rep. 149. was determined on the special subject matter of the contract; and the case of Mason v. Pritchard, 2 Campb. 336. and Merle & al. v. Wells, 2 Campb. 413. were on agreements in their terms so sweeping and unlimited as to bear no analogy to this case. All these cases are inapplicable to the one before us.

The case of Kirby v. The Duke of Marlborough, 2 Mau. & Selw. 18. is, in principle, very much like the one under discussion. It was determined, in that case, that a bond conditioned for the payment of such sums, not exceeding 3000 L, which should, at any time thereafter, be advanced, by the plaintiffs, to A., is not a continuing guaranty to the extent of 3000 l., for advances made at any time, but only for advances once made, to that extent. The expression “at any time” which was favourable to the agreement’s being for a continuing guaranty, was held not to be sufficient for that purpose.

Rogers & al. v. Warner, 8 Johns. Rep. 119. fully warrants the . construction I have given in this case. A. and B. addressed a letter of credit to C., saying, “if D. wishes to take goods of you on credit, we are willing to lend our names as security for any amount he may wish.” This comparatively strong expression was held to extend only to the first parcel of goods delivered. “It would bo unjust and unreasonable,” said the court, “to extend it to an indefinite time.” How much more unreasonable and unjust would it be, to render the defendant liable on a guaranty, indefinitely to be continued, on expressions more defined and limited than those of the preceding case?

In Melville &. al. v. Hayden, 3 Barn. & Ald. 593. the defendant guaranteed the payment of a debt to be contracted, to the extent of 50 Ɩ. Exchange the word “extent,” and insert in its place the term “amount,” and we have the precise case before us. The above cited case was held not to be a continuing guaranty; and in delivering their opinions, the judges advanced the following principle, viz: that a party in a guaranty of this sort should carefully provide, that there be words in it expressive of its being a guaranty for goods furnished from time to time. So in tins case, if a continuing indorsement were intended, the above expression should have been inserted.

In Cremer v. Higginson, 1 Mason 323. it appears, that the defendants wrote a letter, in which they represented, that their friends S. and H. Higginson contemplated the making of a considerable purchase of goods on the continent of Europe, and requested the plaintiffs to furnish them with any sum they might want, as far as 50,000 dollars. This, by Story, J., was adjudged to be a limited guaranty. And the principle, highly reasonable, was stated by him, that the language should be very strong to justify the holding it to be a continuing guaranty to cover advances from time to time to the stipulated amount; and that, in every doubtful case, the presumption ought to be against it. Upon the same principle, ought not the language of the defendant’s contract to be clear and powerful, to authorize the subjection of him from year to year, and indefinitely? And if it be not free from all reasonable doubt, ought lie to ibe responsible as upon so sweeping an engagement? Bovill v. Turner, 2 Chitty 205.

On the established principles of construction, as well as upon the adjudged cases, I have no doubt, that the defendant assumed no responsibility, except as to the first notes to the amount of 4000 dollars, indorsed by the plaintiff. And it certainly is casting no unreasonable burden on those, who claim ran unlimited guaranty, to require, that they shall exhibit a contract to this effect, expressed in clear and unequivocal terms. On the contrary, the safety of the community, and the preservation of that friendly assistance, so useful in the commercial world, both demand, that responsibilities be not adjudged by strained and rigourous constructions.

2. I now come to the second enquiry in the case, viz: whether the parol evidence received was admissible to give a construction to the agreement.

It is a settled general principle, that written evidence, by reason of its certainty and its freedom from the deficiencies of integrity and memory, is of higher authenticity than parol; and that matters in writing are not to be controuled, by the uncertain testimony of slippery recollection. 5 Co. 26. And when a written instrument is made, by the compact of the parties, the permanent repository of their intention, inferior oral evidence is neither admissible as a substitute, nor in any respect to vary or contradict the writing. And so fur is this principle carried, that no extrinsic evidence, is, in general, receivable, to alter the construction of words, or to affect the presumptions arising from such construction. Debeze v. Mann, 2 Bro. C. C. 521.

Several distinct grounds, however, have been assumed for the introduction of the parol evidence in this case.

It was first said, that it was necessary to sustain the consideration of the agreement. The reply is obvious, that for this purpose it was not necessary. The agreement, on its face, imports, as it already has been observed, a good consideration. The act to be done, by the plaintiff, on the credit of the defendant’s stipulation, was a consideration legal and sufficient. And independent of the defendant’s promise, and the act done by the plaintiff thence arising, there is no consideration in the case.

It has likewise been insisted, that parol evidence was admissible, in order to a construction of the writing, on the ground of latent ambiguity. This is impossible; as an ambiguity of this description is alone raised by extrinsic evidence; and until such evidence is received, no latent ambiguity can exist. Besides, even the parol evidence admitted raises no ambiguity. The written agreement, on its face, is clear and unambiguous. It is to pay a moiety of loss that may happen, by reason of the indorsement of notes to the amount of 4000 dollars only. Admit that the plaintiff had agreed with Cooper to indorse his notes once, twice and in infinitum. This casts not a shade of doubt on a more limited written agreement, by the defendant, to guarantee the indorsement of the notes but once. It only show’s, that the plaintiff, by the writing, did not obtain a complete indemnity. As to the proof of a verbal agreement by the defendant, that he would indorse the notes of Cooper indefinitely, and be responsible to the plaintiff for his indorsement of them, no ambiguity is created; but the evidence is in direct opposition to, and in subversion of, the written contract; and therefore, it is inadmissible.

It was further urged, by the plaintiff, that the parol testimony was receivable to show the subject matter of the agreement, and the circumstances anterior to it, in order to give it a construction.

To the principle advanced I reply, in the first place, that the subject matter of the contract appears wholly and completely on its face. The first expression of the written contract, is—“Whereas Joel Hall has agreed to indorse Samuel Cooper’s notes, at the Middletown Bank, to the amount of 4000 dollars.” Here, the entire subject matter is displayed. All antecedent oral agreements and considerations were merged in this; and the above expression was put in front of the written contract, as a definite object, to ascertain the purpose and precise extent, of the engagement. Of consequence, all the subsequent expressions point to it expressly. The defendant, looking at this landmark, agrees to be responsible for one half the loss arising “by said indorsements thus explicitly referring to the above sentence, which the parties, how extensive soever the agreement of the plaintiff with Cooper might have been, make the precise subject limiting their contract.

I reply, secondly, that parol evidence, in order to give a construction to a written engagement, is never admissible, unless such contract, on its face, is ambiguous, and requires the aid of extrinsic evidence to expound it. This principle has the force of demonstration; for why seek, by parol, to explain that, which needs no explanation?

The case of Sumner v. Williams, 8 Mass. Rep. 162. was cited for the plaintiff; but it has no bearing on this case. The subject matter was apparent, and the common principle only was recognized, that words are to be construed in reference to their subject matter.

In The King v. Scammonden, 3 Term Rep. 474. parol evidence was admitted, to show, that the consideration of a deed expressed to be 28Ɩ., was in fact 30Ɩ. This was in conlradiction of the deed: but it was in favour of one who was not a party to it, and who, therefore, was not estopped by the writing. 3 Stark. Ev. 1017. 1051, 2. New Berlin v. Norwich, 10 Johns. Rep. 229. The case has no application to the one under discussion.

In The King v. Laindon, 8 Term Rep. 379. an independent collateral fact was admitted to be proved by parol, to aid the construction of a written agreement; but it was because the contract, on its face, was ambiguous. Whether a person was lured as a servant, or was an apprentice, was doubtful, on the written instrumeut; and to dissolve this doubt, oral evidence was received.

In Cole v. Wendell, 8 Johns. Rep. 116. Ely & al. v. Adams, 19 Johns. Rep. 313. and The Mechanics Bank v. The Bank of Colombia, 5 Wheat. 326. where written evidence on its face was ambiguous, parol evidence of collateral facts was admitted, in order to give the writing a construction. Upon the same principle, it was admitted, by Story, J., in Peisch v. Dickson, 1 Mason 9. The words of a written contract, were supposed to admit of two interpretations, and of course, were equivocal. It was, however, stated, by the judge, as a principle, that if a written contract on its face is not ambiguous, parol testimony cannot be admitted to give it a construction; but if it is doubtful, the words being clear and sensible, parol evidence is admissible to solve the difficulty. The ambiguity arose from the word privilege, which like the word freight, is of various applications. Birch & al. v. Depeyster, 4 Campb. 385. Clarke v. Russell, 4 Dall. 415. 421. The case last cited is a strong authority to shew, that if a written agreement is not doubtful on its face, parol evidence is inadmissible; for, it being found, that the waiting admitted of a construction, the parol evidence was, by the judge, disregarded.

In Davenport v. Mason, 15 Mass. Rep. 85. and Foster v. Woods & al. 16 Mass. Rep. 116. parol testimony was admitted to dissolve ambiguities arising from the face of written contracts.

In respect of ancient charters, extrinsic parol evidence has often been received with a view to their construction, that is, the evidence of usage; but this was done only where the words of the charter were doubtful. To admit such testimony where there is no ambiguity, would not be to dispel a doubt, but to create one. 3 Stark. Ev. 1029 to 1032. In coincidence with the principle advanced, parol evidence has been received to show the purpose and intent of executing a written instrument, provided it be perfectly consistent with the legal operation of the instrument, and not inconsistent with its expressed terms. Milbourn v. Ewart & al. 5 Term Rep. 381. 3 Stark. Ev. 1048. To go beyond this, would be to vary the instrument,—to supersede it,—to alter its .legal construction and operation; which cannot be done. Vid. 3 Stark. Ev. 997. 1012. 1003. For, after all, it is the written instrument that must speak. 3 Stark. Ev. 1001.

To avail himself of any parol evidence in the case, the plaintiff must show, that the written agreement is ambiguous. So far from this, the writing is of clear construction, and neither requires nor admits the aid of parol evidence.

It was contended, by the counsel for the plaintiff, that the parol evidence admitted, was referred to, by the agreement, and hence was competent testimony. This position is not sustained by the cited cases. That of Johnson v. Gibson, 4 Esp. Rep. 21. shows the principle of determination. It was said, by Lord Kenyon.: “If the letter refers to the papers, which it covers,—that is, refers to them in, such a way that it is necessary to incorporate the papers enclosed within the body of the letter, in order to make it intelligible or the sense complete,”—the enclosed papers are admissible in evidence. The reference is an actual reference, and the matter referred to essential to an understanding of the fact in enquiry. So in Falconer v. Hanson, 1 Campb. 171. a deposition expressly referred to a log-book for certain facts; and in Wheeler v. Atkins, 5 Esp. Rep. 246. an interrogatory referred to a letter; and both the log-book and the letter were held admissible evidence. In all the cases above cited, the evidence admitted was expressly referred to, and the reception of it was necessary to render the subject intelligible.

But in this case, no fact extrinsic of the written agreement, is referred to; and the written contract requires nothing to make it understood. It mentions an agreement made by the plaintiff with S. Cooper, and tells what it is ; but this is no reference to it. So every written contract embodies a previous parol agreement; but the writing, in such case, is not explainable by parol.

If parol testimony were at all receivable, in this case, in order to assist in construing the written contract, I think it very clear, that much of the evidence admitted was incompetent. It appears to operate an entire suppression of the written agreement, and a substitution of verbal evidence in its place. The anterior facts and negotiations, instead of being merged in the written instrument, according to the well known rule of law, (1 Johns. Chan. Rep. 282.) are all brought forward, and virtually extinguish the written contract.

The plaintiff was permitted to prove, that Cooper, free from debt, and without capital, was desirous of entering into the West-India trade, as a permanent business; that he had made an arrangement with the Middletown Bank to accommodate him, as the exigencies of his business should require; that he applied to the plaintiff, the defendant, and others, to become his standing indorsers, to the amount of 2000 dollars each, who consented to it; that the defendant, fearful of hurting his credit at the bank, preferred that his name should not appear on the notes; that to obviate this difficulty, the plaintiff, on the defendant’s request, agreed to be the indorser of Cooper’s notes, from time to time, as he should have occasion in his business, to the amount of 4000 dollars; that the defendant agreed to be equally responsible on the indorsements; that knowing all the premises, he made and executed the writing in question; and that Cooper, relying on this aid, commenced and continued his contemplated business.

Thus, numerous facts, shewing an extended series of agreements and negotiations, not contemplated by the defendant’s written engagement, were admitted in evidence, including a contract with the Middletown Bank, with the plaintiff, the defendant and others ; a special agreement with the plaintiff to indorse, and of the defendant to indemnify ; and the whole consummated, by the written contract in question

It is not difficult to see, that the written agreement, encompassed with this mass of testimony, must dwindle to a point; and that the parol evidence received, would be the only voice heard by the jury. I cannot but think, that the admitted evidence was a substitute for the unavailable written contract; and that its tendency was not to aid in construction, but to annihilate the writing. And if there were no writing, and the object had been to show the responsibility of the defendant, by parol evidence, what more could have been proved?

I have no doubt, that the written agreement, on its face, was a limited guaranty; and that the parol evidence was not admissible to give it a construction.

Peteks, Williams and Bissell, Js. were of the same opinion.

Daggett, J.

The first question to be examined, is, by what rule of construction is the court to be governed in determining the true extent and meaning of the instrument on which the suit is founded?

Here it may not be improper to remark, that the counsel for the defendant, in their argument, constantly recurred to the idea, that a strict construction was to be adopted, because it was a case on a guaranty; and they likened it to an action by the vendor of goods, against a person, who had, in some way, as was claimed, rendered himself liable for another, to a certain extent. They treated this action as though it had been brought by the Middletown Bank, against the defendant, on an instrument, by which he had become obligated for the indorsements of Cooper; and they hence inferred, that unless he was bound, by a strict construction of the instrument, he was not bound at all. But 1 apprehend no such rule is to be applied. It is not a claim merely against a surety, and therefore ylrictissimi juris; but it is a contractjietween co-sureties,—a contract of indemnity to a certain extent,—and the rule to be applied is, that it shall be taken most strongly against the person who made it. If, however, this were a question of guaranty, of an ordinary character, I think it should be decided by the latter rule. In Merle & al. v. Wells, 2 Campb. 413. and in Mason v. Pritchard, 12 East, 227. the courts held, that it should be considered a continuing guaranty, unless it unequivocally appeared to be of a contrary character. And in the case of Hargreave v. Smee, 6 Bing. 244. (19 Serg. & Lowb. 69.) Park, J. observed, that he was not disposed to hold the doctrine that a guaranty ought to receive a strict construction; and Tindal, Ch. J. remarked, “that there was no reason for putting on a guaranty a construction different from that which the court puts on any other instrument.” In Melville v. Hayden, 3 Barn. & Ald. 593. (5 Serg. & Lowb. 389.) the court adopted the strict construction. The rule adopted by this Court, in Rapelye v. Bailey, 5 Conn. Rep. 149, was, “that the words of the contract [of guaranty] ought to be taken as strongly against the defendant [the guarantor] as the sense of of them will admit.” This was the opinion of the whole Court, as declared by the Chief Justice; and there being no peculiar reasons assigned, it is to be regarded as universally to be applied.

I will now apply the rule thus established in Connecticut. In reference to the words of the instrument, what obligation does the defendant assume in relation to the plaintiff? Does he become discharged, as soon as the plaintiff has indorsed for Samuel Cooper to the amount of 4000 dollars? Or does he remain liable so long as the plaintiff continues to indorse for Cooper, at no one time going beyond that amount? The words of the instrument appear to be susceptible of either of these constructions; and which is to be given to them will depend upon the rule applied by the Court. If the words are to be taken strictly against the defendant, he is not liable; but if, according to the rule established above, and which is as ancient as the common law itself, the words are to be taken strongly against the defendant, 1 can not avoid the result, that the defendant is liable. It would be too much to say, that if the whole amount of 4000 dollars had been taken up at once, on one note indorsed by the plaintiff, and then there had been successive renewals of that note, the defendant would have been discharged from all liability upon those notes. Yet such would undoubtedly be the case, if the strict construction insisted on is to prevail.

Though it is true, that each case of this nature is to stand on its own foundation, and be decided with reference to its peculiar circumstances: yet we may advantageously recur to other cases of a similar character, and examine how they were decided. Of those cases there are several not distinguishable in principle from the present.

The first is that of Mason v. Pritchard, 2 Campb. 436. S. C. 12 East 227. In that case, the defendant promised tobe responsible to him for any goods he hath or may supply W. Pritchard, to the amount of 100Ɩ. It was contended, that the guarantor’s responsibility was at an end, when the plaintiff had supplied goods to the amount specified; but the judge at Nisi Prius, and the whole court of King’s Bench, decided otherwise. They held, that the instrument was “a continuing and standing guaranty to the extent of 100Ɩ., which might at any time become due for goods supplied, until the credit was recalled.

The case of Hargreave v. Smee, 6 Bing. 244. (19 Serg. & Lowb. 69.) is of a similar character. There the defendant guaranteed the payment of goods to be delivered to third persons "acordiang to their custom of trading with the plaintiff, in the sum of 200Ɩ.;" and the court of “Common Pleas held that it was a continuing guaranty.

But the case of Woolley & al. v. Jennings & al. 5 Barn. & Cres. 165. (11 Serg. & Lowb. 187.) is, if possible, still more in point. In that case, the bankrupts, of whose estate the plaintiffs were assignees, had given the defendant a warrant of attorney, with a defeasance that it was “given to secure the payment of the sum of 4000Ɩ., with lawful interest thereon.” On this warrant of attorney a judgment was entered up; but between the date of the bond and the entry of the judgment, the bankrupts, in the course of their dealings with the defendants, had paid into their hands a larger sum than 4000Ɩ. And it was contended at Nisi Prius, that the warrant of attorney was discharged; but Chief Justice Abbott was of a different opinion, and the jury found a verdict for the defendants. On motion for a new trial, that opinion was confirmed, in the court of King’s Bench; that court being of the opinion, that the warrant of attorney was a continuing security.

I will not refer again to the opinion of this Court, in Rapelye v. Bailey, 5 Conn. Rep. 149. except to say, that it fully supports the doctrine of Mason v. Pritchard above mentioned, and recognizes the principles advanced.

That these cases are precisely like the case before the Court, I do not insist; but that they materially differ from it cannot be shown. They are, therefore, guides to me to pronounce this a continuing guaranty.

Thus, by the decided cases, and the words of this instrument, giving their genuine construction, the defendant is liable.

But a question, in my view, of far greater importance, remains to be examined. Are we to be confined to the words in this guaranty, in deciding on its meaning; or may we look also to the circumstances under which it was given, to the situation of the parties, and to the object they had in view in the transaction? And here I fully recognize the correctness and obligation of the rule, that extrinsic evidence can never be resorted to, for the purpose of contradicting or controuling the express provisions of written instruments. This rule lies at the foundation of our most valuable rights, and cannot be shaken or departed from, without imminent danger.

I have said, that this instrument admits, on the face of it, of two constructions. According to one construction, it will be confined to indorsements made by the plaintiff, on Cooper’s notes, to the amount of 4000 dollars; and immediately thereafter, it will become functus officio. According to the other construction, it is a continuing guaranty, and remains obligatory on the defendant, for one half of the indorsements made by the plaintiff, not exceeding, at any one time, 4000 dollars; no notice being given, by the defendant, to the plaintiff, to discontinue indorsing. Now, the precise question is, whether in determining which of these two is the correct construction of the instrument, we may look out of the instrument itself to the circumstances connected with its execution, and the situation and object of the parties. That this may, and ought to be done, I shall now attempt to establish.

In the case of Peisch v. Dickson, 1 Mason, 10. Judge Story, after observing that latent ambiguities may be removed, by evidence aliunde, but that such evidence is not admissible with reference to patent ambiguities, remarks: “There seems indeed to be an intermediate class of cases, partaking both of the nature of latent and patent ambiguities; and that is, where the words are all sensible, and have a settled meaning, but at the same time, consistently,admit of two interpretations according to the subject matter in contemplation of the parties. In such cases, I should think parol evidence might be admitted to shew the circumstances under which the contract was made, and the subject matter in contemplation of the parties.” With these remarks of that learned judge I entirely concur. They appear to present a somewhat confused subject in a very clear light. The distinction taken and the foundation on which it rests, must be obvious. This principle has been fully recognized, by Chief Justice Hosmer, in giving the opinion of the whole Court, in the case of Strong v. Benedict, 4 Conn. Rep. 210. 220. 231. His language is: “Without the expression of a definitive opinion on this subject, I have no doubt that the condition and situation of the parties, and other collateral facts known to them both, may be recurred to, to ascertain their mutual intention. This is not a novel prinicple, but has been frequently recognized and applied. Courts of law, as well as courts of equity, will admit evidence of the situation and circumstances of the parties, for the purpose of assisting them in putting a construction on a will.” Cases are then cited. In the case of The King v. Laindon, 8 Term Rep. 379. evidence was received to ascertain an independent fact, in order to aid in the construction of an agreement. After thus stating the rule, which is much broader than what is claimed in the present case, he proceeds to apply it, and says: “Under the guidance of the preceding principles, I will recur to the condition and circumstances of the parties, at the execution of the deed.” He then fully states those extrinsic facts, and in reference to them, determines the true construction of the written instrument. The cases also of Brown v. Brown, 4 Con. Rep. 269. and Lines & al. v. Flagg, 4 Conn. Rep. 581. may be referred to, as evidence of the opinion of this Court on the subject, in deciding those cases, and determining the meaning of the written contracts on which they are founded, all the judges, who gave opinions, referred to the situation, conduct and object of the parties ; and no doubt was, in any way, intimated as to the propriety of this course.

In conclusion, I will also mention the case of Ely & al. v. Adams, 19 Johns. Rep. 313. The very able opinion of the court, by Chief Justice Spencer, fully supports all the grounds taken, and the views expressed, by me, on this subject.

It being shown, that we may and ought, in construing this guaranty, to look to the circumstances, situation and object of the parties, it remains only to enquire, what is the true meaning of the instrument viewed in this light? Here 1 may confidently say, there is no room for doubt. The jury, by their verdict, have found the facts (to prove which the extrinsic evidence was admitted) as claimed by the plaintiff; and in view of those facts, which are fully detailed in the motion, no person can doubt as to the intention of the parties or the correct construction of the guaranty. Cooper contemplated a permanent business, in which he would require “continual accommodations,” and the assistance of “standing indorsers.” The plaintiff became his standing indorser to the amount of 2000 dollars, on his own account and risk, and to the amount of 2000 dollars more, on the account and risk of the defendant. The plaintiff, at the request of the defendant, and for his benefit, stood in his place as to this last mentioned sum, and relied, for his complete indemnity, on the guaranty in question. Under these circumstances, he has been compelled to pay a large sum of money for the defendant; and when he calls for indemnity, the defendant endeavours to shelter himself under various legal principles. None of them, in my opinion, ought to afford him that protection. The honesty and justice of the case demand an adequate remedy to the plaintiff. That the subject should present itself to others in a different light, I cannot but regret; as their decision fixes a serious loss upon a party, who expected, in the observance of that good faith which usually characterizes the intercourse of merchants, a different result.

Having come to the conclusion, that the guaranty in question ought to be so construed as to include the notes, which the plaintiff has paid, we are next to enquire, whether there has been an omission of any act necessary to fix the defendant’s liability. And here it is insisted, that the defendant was entitled to strict notice of the non-payment of the Cooper notes; in other words, that the same notice ought to have been given to him, which is required to hold indorsers. The rule that indorsers of negotiable promissory notes are discharged, unless notified within the time prescribed by law, is unquestionable; but it has never been extended to persons whose names are not on the notes. On the contrary, it Iras been expressly and repeatedly decided, that such notice is not necessary to strangers, however great may have been their interest in having the notes paid. Swinward & al. v. Bowes, 5 Mau. & Selw. 62. Van Wart v. Woolley & al. 3 Barn. & Cres. 429. (10 Serg. & Lowb. 145.) The case of Holbrow & al. v. Welkins, 1 Barn. & Cres. 10. is similar in principle, and almost in its circumstances, to the one before the Court. The plaintiffs had sold goods to third persons, taking their acceptance of a bill for the amount, half of which the defendant guaranteed. The bill was not paid, when it became due; and no notice of the non-payment was given to the defendant. The Court decided in favour of the plaintiff, on the ground that the defendant was not entitled to notice, as he was not a party to the bill.

But as this point and the other remaining questions raised by the counsel, formed no objections in the minds of any of the Court to the plaintiff’s recovery, I will forbear any further remarks. The points which they have discussed, are interesting and important; and I have freely expressed my view regarding them, though with the greatest respect for those from whom I am obliged to dissent. If my opinion be erroneous, I have the satisfaction of knowing that it can occasion no injury.

I am of opinion,

First, that this guaranty ought to be taken strongly against the defendant; and that so taken, the defendant is liable:

Secondly, that the guaranty, on the face of it, admits of two constructions; and that to determine which is the correct one, the court may, and ought, if necessary, to look out of the instrument to the circumstances under which it was given, and to the situation and object of the parties; and that so doing, there can be no doubt the defendant is liable:

Thirdly, that the defendant was not a party to the notes paid; and therefore, was not entitled to strict notice of the non-payment by the maker.

There being, then, no satisfactory objection to the verdict, I would not grant a new trial.

New trial to be granted.