SPRAGUE, District Judge.
The questions presented in this case are important, and I am not surprised that the ablest counsel should differ widely respecting them. I have given to them all the consideration which the time has allowed during the progress of a jury trial, and will now state the conclusion to which I have arrived, and the reasons upon which it is founded. In the present position of the case, the question is first, what the jury would be authorized to find, by the evidence, as matter of fact, and secondly, whether the facts they would be authorized to find would be sufficient to sustain the action. And first: The action is founded entirely on the letter of the 7th of April, and the material question is, as to the authority of Mr. Curtis to exhibit it. It is not contended that Mr. Curtis did not act with entire good faith to the plaintiffs or other third parties. There is nothing in the evidence to warrant the jury in finding the contrary, for this rests entirely upon his testimony; and there is no evidence there certainly, that he did not act in entire good faith to the plaintiffs. The question then is this, whether Mr. Curtis did, in fact, have authority to exhibit this letter to the plaintiffs. It is admitted by the counsel that if the jury could find that he had, the cause must be put to them, and on the other hand, if the jury must find that he had no authority, then there was no ground to sustain this action. So, then, the inquiry really is, whether, upon the evidence introduced and offered, the jury could find, agreeably to principles of law, that Mr. Curtis had authority to exhibit the letter. And the first remark is, that all the authority conveyed to Mr. Curtis for the exhibition of the letter, is the letter itself. There is no evidence of any personal communication between Mr. Curtis and the defendant, or with another person as defendant’s agent, or by any other means than the letter itself. And the question is, what authority did that letter give him to exhibit it? It is a question of the construction of a written instrument to be aided, undoubtedly, by surrounding circumstances; but the question' is this, whether the letter, read by the light of all the surrounding circumstances, conveyed to Mr. [1151]*1151Curtis any authority for its exhibition to another party. In the first place, look at the letter. And here as to the province, respectively of the court and the jury. It is equally the duty of the court not to withdraw from the jury any thing proper for their determination; and, on the other hand, not to throw upon them the responsibility of a question which it is the duty of the court to decide.
The general rule of law is — that written instruments are to be construed by the court and not by the jury. This is a written paper, and, by the general rule, to be decided upon by the court. But there may be extrinsic circumstances to be taken into view, in construing all such documents; there may be technical terms and expressions used by one or another class of persons, intelligible to such class, though perhaps not generally. In such case the facts bearing upon the construction are matters to be ascertained by a jury. But when there are no such extrinsic facts, or no such technical terms, then it becomes the duty of the court peremptorily to decide as to the meaning of the writing — its construction and effect. Questions may sometimes arise as to the mercantile or commercial meaning attached to terms of trade. But here there is no evidence whatever of any meaning of the words, different from the ordinary, usual one known to the community and presumed to be known to the court. It is argued for the plaintiffs that the term confidential, as between bankers, merchants, and the like, has a meaning different from the ordinary one, but no evidence has been offered to show that such is the ease. There is evidence offered of extrinsic circumstances going to prove, as the plaintiffs aver, that Mr. Curtis had authority to exhibit this letter, and this will be examined hereafter. But let us, in the first place, proceed to consider the letter itself. It must be taken in connection with that of the 5th of April from Mr. Curtis. That, also, is a written paper, and'its construction belongs to the court and not to the jury. In the letter of the 5th, Mr. Curtis asks as the defendant’s opinion of the danger or risk of selling largely to those parties, and then adds, that whatever that opinion may be “it will be discreetly used by myself.” In answer, the defendant immediately writes, beginning his letter with the word “confidential.” He then goes into a statement of the relations and dealings between himself and the said concerns; states certain facts; and •expresses an opinion as to their ability to .pay, and the danger of loss by trusting them.
Now, the question before the court, in looking at the letters, is as to the force and effect of the word “confidential,” in the letter of the 7th of April, as taken in connection with the first letter of the 5th of April, .and the surrounding circumstances. It "is written immediately after in answer to the inquiry of Mr. Curtis, and it will be observed that Mr. Curtis promises that whatever may be the opinion of Mr. Brown, it will be “discreetly” used by himself. This, if the word “confidential” were omitted from the reply, would leave the matter to Mr. Curtis’s discretion, and it is argued that the use of that term does not necessarily restrict the letter to Mr. Curtis’s own use. If it (the word “confidential”) were left out, I do not think the letter would be restricted to Mr. Curtis’s own private business, but the letter would be intended to be used by him discreetly in relation to questions regarding the solvency of the concerns spoken of. But the defendant does not content himself merely with the promise of Mr. Curtis to use the defendant’s opinion discreetly, but super-adds a restriction of his own, — he marks his letter “confidential,” and the question is, what is the meaning of that word? I apprehend that it cannot be, as the learned counsel for the plaintiffs have contended, that it means that Mr. Curtis is to be discreet as to whom he shall exhibit the letter, for the defendant had that promise in the letter from Mr. Curtis; he was not content with that promise, but marks his reply “confidential,” And now can it be said that a person receiving a communication bearing “confidential” on the face of it, is at liberty, at his own discretion, to show it to everybody or anybody? I think not. I think it would be a violation of the whole rule of correspondence and of the plain meaning of the term “confidential.” The argument is, that it was intended to leave entirely to Mr. Curtis’s discretion the exhibition or communication of the letter, or its contents. But that is the very thing which it seems to me the defendant intended expressly to prevent. He was not willing to leave it to his agent’s discretion, but meant distinctly to restrain him as to the use to be made of his communication. The contents of the letter would not give a different force and effect to the word from that, because they give a detail, at great length, of the affairs of Thompson & Co., of their pecuniary arrangements, of their attempts to sustain their credit by the negotiation of bonds in England, and an opinion that T. & Co. had invested too much money in the factories, &e. These details, if they do not strengthen, certainly do not impair the effect and force of the word “confidential.” Looking at' the letters themselves, therefore, I cannot see on the face of them anything to authorize Mr. Curtis to exhibit the letter of the 7th April to Mr. Iasigi or others. And here be it remembered, that Mr. Brown did not know that Mr.
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SPRAGUE, District Judge.
The questions presented in this case are important, and I am not surprised that the ablest counsel should differ widely respecting them. I have given to them all the consideration which the time has allowed during the progress of a jury trial, and will now state the conclusion to which I have arrived, and the reasons upon which it is founded. In the present position of the case, the question is first, what the jury would be authorized to find, by the evidence, as matter of fact, and secondly, whether the facts they would be authorized to find would be sufficient to sustain the action. And first: The action is founded entirely on the letter of the 7th of April, and the material question is, as to the authority of Mr. Curtis to exhibit it. It is not contended that Mr. Curtis did not act with entire good faith to the plaintiffs or other third parties. There is nothing in the evidence to warrant the jury in finding the contrary, for this rests entirely upon his testimony; and there is no evidence there certainly, that he did not act in entire good faith to the plaintiffs. The question then is this, whether Mr. Curtis did, in fact, have authority to exhibit this letter to the plaintiffs. It is admitted by the counsel that if the jury could find that he had, the cause must be put to them, and on the other hand, if the jury must find that he had no authority, then there was no ground to sustain this action. So, then, the inquiry really is, whether, upon the evidence introduced and offered, the jury could find, agreeably to principles of law, that Mr. Curtis had authority to exhibit the letter. And the first remark is, that all the authority conveyed to Mr. Curtis for the exhibition of the letter, is the letter itself. There is no evidence of any personal communication between Mr. Curtis and the defendant, or with another person as defendant’s agent, or by any other means than the letter itself. And the question is, what authority did that letter give him to exhibit it? It is a question of the construction of a written instrument to be aided, undoubtedly, by surrounding circumstances; but the question' is this, whether the letter, read by the light of all the surrounding circumstances, conveyed to Mr. [1151]*1151Curtis any authority for its exhibition to another party. In the first place, look at the letter. And here as to the province, respectively of the court and the jury. It is equally the duty of the court not to withdraw from the jury any thing proper for their determination; and, on the other hand, not to throw upon them the responsibility of a question which it is the duty of the court to decide.
The general rule of law is — that written instruments are to be construed by the court and not by the jury. This is a written paper, and, by the general rule, to be decided upon by the court. But there may be extrinsic circumstances to be taken into view, in construing all such documents; there may be technical terms and expressions used by one or another class of persons, intelligible to such class, though perhaps not generally. In such case the facts bearing upon the construction are matters to be ascertained by a jury. But when there are no such extrinsic facts, or no such technical terms, then it becomes the duty of the court peremptorily to decide as to the meaning of the writing — its construction and effect. Questions may sometimes arise as to the mercantile or commercial meaning attached to terms of trade. But here there is no evidence whatever of any meaning of the words, different from the ordinary, usual one known to the community and presumed to be known to the court. It is argued for the plaintiffs that the term confidential, as between bankers, merchants, and the like, has a meaning different from the ordinary one, but no evidence has been offered to show that such is the ease. There is evidence offered of extrinsic circumstances going to prove, as the plaintiffs aver, that Mr. Curtis had authority to exhibit this letter, and this will be examined hereafter. But let us, in the first place, proceed to consider the letter itself. It must be taken in connection with that of the 5th of April from Mr. Curtis. That, also, is a written paper, and'its construction belongs to the court and not to the jury. In the letter of the 5th, Mr. Curtis asks as the defendant’s opinion of the danger or risk of selling largely to those parties, and then adds, that whatever that opinion may be “it will be discreetly used by myself.” In answer, the defendant immediately writes, beginning his letter with the word “confidential.” He then goes into a statement of the relations and dealings between himself and the said concerns; states certain facts; and •expresses an opinion as to their ability to .pay, and the danger of loss by trusting them.
Now, the question before the court, in looking at the letters, is as to the force and effect of the word “confidential,” in the letter of the 7th of April, as taken in connection with the first letter of the 5th of April, .and the surrounding circumstances. It "is written immediately after in answer to the inquiry of Mr. Curtis, and it will be observed that Mr. Curtis promises that whatever may be the opinion of Mr. Brown, it will be “discreetly” used by himself. This, if the word “confidential” were omitted from the reply, would leave the matter to Mr. Curtis’s discretion, and it is argued that the use of that term does not necessarily restrict the letter to Mr. Curtis’s own use. If it (the word “confidential”) were left out, I do not think the letter would be restricted to Mr. Curtis’s own private business, but the letter would be intended to be used by him discreetly in relation to questions regarding the solvency of the concerns spoken of. But the defendant does not content himself merely with the promise of Mr. Curtis to use the defendant’s opinion discreetly, but super-adds a restriction of his own, — he marks his letter “confidential,” and the question is, what is the meaning of that word? I apprehend that it cannot be, as the learned counsel for the plaintiffs have contended, that it means that Mr. Curtis is to be discreet as to whom he shall exhibit the letter, for the defendant had that promise in the letter from Mr. Curtis; he was not content with that promise, but marks his reply “confidential,” And now can it be said that a person receiving a communication bearing “confidential” on the face of it, is at liberty, at his own discretion, to show it to everybody or anybody? I think not. I think it would be a violation of the whole rule of correspondence and of the plain meaning of the term “confidential.” The argument is, that it was intended to leave entirely to Mr. Curtis’s discretion the exhibition or communication of the letter, or its contents. But that is the very thing which it seems to me the defendant intended expressly to prevent. He was not willing to leave it to his agent’s discretion, but meant distinctly to restrain him as to the use to be made of his communication. The contents of the letter would not give a different force and effect to the word from that, because they give a detail, at great length, of the affairs of Thompson & Co., of their pecuniary arrangements, of their attempts to sustain their credit by the negotiation of bonds in England, and an opinion that T. & Co. had invested too much money in the factories, &e. These details, if they do not strengthen, certainly do not impair the effect and force of the word “confidential.” Looking at' the letters themselves, therefore, I cannot see on the face of them anything to authorize Mr. Curtis to exhibit the letter of the 7th April to Mr. Iasigi or others. And here be it remembered, that Mr. Brown did not know that Mr. Curtis wrote his letter at the request of the plaintiffs or any other party.
Now looking at the extrinsic circumstances or evidence of other facts, let us see if either court or jury can be authorized by them to give a different construction to the letter. The first evidence is that of Mr. Curtis, the first witness called for the plaintiffs. What [1152]*1152are the jury authorized to find from any facts he has testified to? His testimony in every part of it goes to show that he had no authority out of the letter itself, to exhibit it He negatives the contrary altogether. He states that he considered it confidential, and not to he communicated. But if he had stated the reverse, his considering that he had the authority would not make it so. He says, that at the request of Mr. Iasigi he exhibited the letter to him, stating to him distinctly that it was a confidential letter. It has been contended in argument that the jury would be authorized not to believe this, because in the former deposition of Mr. Curtis he makes no mention of such statement. Perhaps this is not a material fact to inquire into now. But the moment the plaintiff put his eye upon the letter he saw at once that it was confidential on the face of it. He must have seen it, in the very first line. On Mr. Curtis’s testimony, therefore, there is nothing to control the force and effect of the letter itself — as claiming to be confidential. The next evidence is that given by Mr. Grant, and here the same remarks apply. The jury have authority to find every thing he states as to the interview to be true. They may find every thing for the plaintiffs that the witness testifies to, but the court must decide what would be the force and effect of suc-h facts. Now on his evidence it might be found that Mr. Iasigi, Mr. Grant, and Mr. Kendall, all creditors of Thompson & Co. or the factories, called on the defendant in New York, stating through Mr. Iasigi, that they had sold their merchandise on the faith of the letter of the 7th of April, and had come to claim from the defendant, a participation in the effects of the debtors, on account of the moral obligation the defendant was under, from his position with regard to all parties, to allow them to come in and participate. Thereupon a discussion was had; both letters were spoken of and referred to. Copies of the letters were in the possession of these gentlemen — Grant swears that he had a copy, — and they must also be presumed to be known to the defendant, for they were alluded to by all parties, by Brown, the defendant, and by his partner, as well as by Iasigi and the others.
Now as to what was said or omitted to be said in this interview. It is argued for the plaintiffs, that the omission to claim that the letter of the 7th of April was confidential, and his silence on that subject was, in effect, an admission by the defendant that it was not confidential, and may be so taken by the jury. Let us look at that. The claim then made was only of a moral obligation— and the only expression of the defendant’s relied on by the plaintiffs is his statement that the letter was a guarded one; the question of confidence was not mooted — not alluded to at all — and the question for consideration is, whether, if the defendant in conversation omits to state that the letter contains some thing which we find in it, that is an admission that the letter does not contain it; or, in other words, if, in a conversation held in October upon a letter written in the preceding April, the party omits to state that it contained a certain statement,, he there by intended to convey that it did not contain such statement. It seems to me that the ground can not be maintained; that a party, conversing with another who has a copy of the letter in question and knows what it is, cannot, from an omission to cite any particular of that letter, be held to an admission that the letter does not contain such particular. Here was a claim urged upon a moral obligation; and so considering it, defendant might not have thought it necessary to advert to the confidential character of the letter, whereas he might well have done so had it been a question of legal liability. There is a difference between the two; and it may very well be that a party, in a conversation placed distinctly on the one ground should employ different terms from those he would have used, had he been called upon, on another or opposite ground. Taking the conversation as it was, it is in proof that the defendant declared the letter to be a guarded one. Now the plaintiffs contend that the meaning of this is, that the letter was carefully worded and guarded, so as to protect himself (the defendant). The plaintiffs say that the jury are entitled to draw this conclusion. Suppose it to be so; may not the making of the letter confidential have been one of the guards he had reference to in the conversation? May he not have intended it as such? But again, suppose that he was speaking of the contents-of the letter. The plaintiffs’ argument assumes that a person does not write a guarded letter, meaning and intending it to be a confidential one; but that when one writes a confidential letter, it will be a free statement of facts or opinions inconsistent with the import of the word “guarded.” That is, that in this, or a similar case, the very declaration by the writer, that his letter was, or was meant to be a .guarded one, overthrows the presumption that it was confidential. This suggestion may be of some force as to mere letters of friendship, but not as to matters of business. I see no inconsistency in declaring the letter to be guarded, and at the same time holding it to be confidential. A principal may be guarded in his statement to his agent and may write cautiously, in order that he may not be misled, but that does not show that it may not be also confidential. We next come to the letters of the 2Gth and 27th June; they also must be for the construction of the court. It is argued that the letter of June 27th shows of itself, in its language, that the other letter, of April 7th, was not intended to be confidential, but, on the contrary, was meant to be read or shown. Sir. Curtis, in his letter of June 2Gth, says: — “A [1153]*1153friend of ours desires me to inform him how far it would be satisfactory to me (you) to have him sell to the Thompsonville Oo. 1 replied, that I believed you thought favorably of the concern. Now I wish to know what your present feelings are in respect to that concern; there being • several among my friends here who have heretofore sold them wool and wish to continue to do so.” In answer to this, the letter of the 27th June, says: — “We continue to have a favorable opinion of the concerns you allude to.” Now the question is whether that goes to show that the former letter was not meant to be confidential, and to show that Mr. Curtis had authority to exhibit it. There is no reference whatever in the letter of June to that of April, and can any body say, that this letter of the 27th of June says to Mr. Curtis, that when he received the letter of April 7th he was then at liberty to exhibit it, or is now at liberty to show it? It seems to me the merest conjecture to infer, that Brown, Bro’s & Co’s letter of June 27th had any reference to that of the 7th April, and still more, that it meant to convey any authority to Mr. Curtis, the agent, to show the first letter. The defendant had no reason whatever to suppose that, in point of fact, up to that time, Mr. Curtis had exhibited the first letter to any body. Nothing was said in any of the correspondence leading to such an inference on his part; and now, on this state of things, can it be, that this letter of the 27th of June gave him authority to exhibit the letter of April 7th? I cannot think that such would be a safe ground of judicial proceeding, in determining the rights of the parties.
I have thus considered all the evidence as yet put in, and now proceed to consider what is proposed to be proved. And this I deem of more importance and force than any thing to which I have before adverted. What is proposed is this — to show that in the letter of the 7th of April there were various statements going to sustain the credit of said parties. which were not true, and that the defendant at the time knew that they were not true, and that he omitted or suppressed facts which he knew to be material; and further, that when doing this, he, as a large creditor, had an interest to sustain the credit of Thompson & Co. and the factories, and to procure for them further credit in the community. From all this, if proved, the court or jury might doubtless infer that it was the intention of the writer to sustain the credit of the Thompsons, and that his letter should in some manner be operative to that end. But in what manner? The counsel for the plaintiffs insist that it must have been by exhibiting the letter to the third persons. Their argument assumes that this is the only mode in which the letter could operate to sustain the credit of the Thompsons. But is it the only mode? Is there not another? less effective indeed in giving a false credit, but still conducive to that end, and more safe to the writer, and more in accordance with his expressed purpose of .withholding his name and shielding himself from responsibility to others. It is to be borne in mind that his letter was not volunteered. It was drawn from him by a direct interrogatory, put by the letter of Mr. Curtis. He was not informed that this was written at the request of any other person, or that Mr. Curtis would be under the necessity oj. saying to any one, that he had or had not received a communication upon this subject from the defendant. Mr. Curtis put the inquiry as his own, with an assurance that the opinion which might be given in response should be used discreetly by himself. This implied that it would be entirely within his control and discretion. If the defendant had refused to make any answer to Mr. Curtis, that might of itself have been injurious to the credit of the Thompsons. All that the occasion required, so far as he knew, was to satisfy the mind of Mr. Curtis, so that the credit of the concern should not suffer in his mind, or through the opinions that he might express; and this would be accomplished by a confidential letter to Mr. Curtis, stating such facts and opinions as would convince him, and at the same time prohibiting him from giving the name of the writer as his authority. The letter would thus be operative to sustain the credit of the concerns so far as Mr. Curtis should personally have business with them, and so. far as he should express his own opinions to others. This was all that there was any apparent occasion for the defendant then to do, and if the statements in the letter were de-signealy false as the plaintiffs insist, and as we must for the purposes of the present question take them to be, that of itself might be a strong reason, why he should be unwilling that his name should be disclosed, and should prohibit this correspondent from subjecting him to responsibility to others.
Let us here recur to the main question. The court is called upon to give a construction to this letter, and to declare, whether it authorized Mr. Curtis to exhibit it to the plaintiffs. It contains language clearly prohibiting such exhibition. The plaintiffs insist that such prohibition is incompatible with extrinsic facts, and therefore to be disregarded. The burden is upon the plaintiffs to snow the incompatibility. This they have not been able to do; on the contrary, it appears that all the facts which could be found by a jury, admit of a fair and rational solution, in perfect harmony with the language of the letter. There is nothing which can authorize the court to annul or disregard the distinct and positive prohibition which it contains. The exhibition of the letter therefore was not authorized by the defendant. Here another question may arise. It may be contended, that although the letter was not intended to be shown, yet that it was intended to give a false credit to the Thompson con-[1154]*1154ceras, by impressing Mr. Curtis witli an erroneous opinion, and by bis expressing sucb opinions to mislead others; and that the plaintiffs have in fact been misled, and given credit to their injury. To this it may be answered, in the first place, that although it may have been intended to have given a false credit, and that Mr. Curtis should express his own opinion to that end, yet this was not in fact done, and what was done was not authorized. No one can say that if Mr. Curtis had merely expressed his own opinion, the plaintiffs would have given the credit. When Mr. Iasigi went to Mr. Curtis, it was not for his opinion, but to obtain that of the defendant, because, as is expressly alleged in the declaration, he knew that the defendant was conversant with the Thompson concerns; and the plaintiffs have from the beginning relied solely on the exhibition of the letter, as the ground upon which they made the sales. They did not give credit upon any act authorized by the defendant. Whether if Mr. Curtis had done what he was authorized to do. merely expressed his own opinion, the plaintiffs would have given the credit, is mere matter of speculation and conjecture, which cannot be the basis of a judicial determination. In the second place, by the Revised Statutes of Massachusetts (chapter 74, § 3) it is provided that no person should be liable for any representation: of the credit of another, unless such representation shall be in writing, and signed by him, or by some person by mm lawfully authorized. Now if the plaintiffs had had only a verbal representation from Mr. Curtis, as the expression of his own opinion, the statute would have interposed an obstacle to the plaintiffs’ recovery. The result is, that the evidence which has been introduced and of-, fered is not legally sufficient to maintain this action, and the jury must be instructed to return a verdict for the defendant.
[NOTE. The case was then taken by writ of error to the supreme court, where the judgment was reversed in an opinion by Mr. Justice McLean, who said that it was for the jury to say whether the letter which was marked “Confidential” was intended for the exclusive perusal of the person to whom it was addressed. All facts which conduced to show that defendant acted in bad faith in writing the letter should be considered by the jury. Campbell and Curtis, JJ., dissented. 17 How. (58 U. S.) 1S8.]