
    Lanuse against Barker.
    ALBANY,
    August, 1813.
    A bill of ex-ccptions ten-tiered after a tu-med” “into their verdict but ^before it is in season as tíonthe fmig^but not tion of evidence arising at the trial. as to any ques-
    .S.amerchant in New-York, wrote to X. a merchant in New Orleans, on the 9th January, 18O6, mentioning that a shipbey^Smz/of M’exo-Orleans and directing freight fm-liev and PTTa board 500 bales of cotton, on the owners’ account, saying,for the payment of all shipmetits on owners’ account, thy bills on T. & Son, of Portland, ov me, at 60 days’ sight, shall meet clue honour.”
    On the 13th February, 1806, B. again wrote to X. relative to the ship, enclosing a letter from T. fS Son the owners, to L. containing their instructions to X. with whom they afterwards continued to correspond. M. in his letter says, l have only to add, that thy bills on me for their account, for cotton they order shipped by the Mac, shall meet due honour.” T, & Son, in their letter, directed X. to draw on them, or on B or on a house in Liverpool, to whom the ship and cargo were to be consigned. On' the 24th July, 1806, B. again wrote to X. relative to the ship, &«. saying, “ the owners wish her loaded on their own account, for the payment of which thy bills on me shall meet due honour at 60 days’ sight.” These letters were received by X. before any cotton was purchased or shipment made1 by him. X. in his answer to the letter of T. & Son, promised to follow their.orders. L. drew several bills on B. all of which were regularly paid. * He, afterwards, without consulting or advising B. drew two bills on T. & Son, which were protested for non-payment, they having, in the mean time, failed. AndfX., about two years after, drew bills on B. for the balance due him on the transaction, including the two protested bills, damages and interest.
    In an action brought by X. against B. to recover the balance due to X. for the purchase of 500 bales of cotton for T. Son, including commissions, disbursements, and other charges, it was held that after the letter of the 13th February, introducing T. & Son, the owners, to X. they were to be considered as the principals, and B merely as a surety, who was responsible only as such, ae« cording to the express terms contained i that letter and the one of the ¿4th July, that is, for bills drawn directly on himself only; not for those drawn on rl\ & Son / that the bills drawn on B. near two years after the protest of those drawn on '1\ ¿9* Son, were without any authority, the delay be* ing a waiver of ail right in X» to draw on B,
    
    THIS was an action of assumpsit brought to recover the ° , , . amount of 500 bales of cotton, alleged to be shipped by tne plain-from New-Orleans, on account of John Taber 8? Son, of ^ the state of Massachusetts, upon the promise of the defendant to pay for the same with the incidental disbursements and expenses. The declaration was for goods sold and delivered, ^ usual money counts. Plea, non assumpsit, with an that either party might give the special matter in evidence, under the general issue.
    The cause was tried at the New-York sittings, on the 8th December, 1811, before Mr. Justice Van Ness.
    
    
      In a letter from the defendant, a merchant in New-York, to the plaintiff, a merchant at New-Orleans, dated the 19th December, 1805, (referring to a former letter from the defendant, A. Barker ¿r J- Griffin, relative to the ship Stranger, requesting 500 bales of cotton to be shipped to Cherbourg, Nanis, Antwerp, or Liverpool, to certain persons named,) the defendant says, “ I am the ship Mac for Jamaica. She belongs to my friends John Taber <§•' Son, Portland, who, I expect, will order her thence to N ew-Orle'ans, to thy address, for a freight; and in that case, if thee makes any shipments for my account to the port where shé miU" *3e bound, give her the preference' of the freight.” This letter was received by the plaintiff the 6th February, 1806. *
    
      On the 9 th January, 1806, the defendant wrote to the plaintiff as follows: “ This will be handed you by Captain R. Swaine, of the Portland ship Mac, which vessel is bound from this to Jamaica, and from thence to New-Orleans, in pursuit of freight: she will be to thy address; she is a good ship,” &c. “ A freight for Liverpool will be preferred; if not to be had, for such oiher port as thee thinks proper to send her. If no freight offers for Europe, send her to this, or some neighbouring port with all the freight that can be had, which I have not any doubt will be sufficient to load her; if thee can get three fourths as much for this port as for Europe, I should prefer it; if not, I should prefer a freight to Europe. Immediately after-her arrival, I wish thee to commence loading her on owners’ account, who wish thee to ship 500 bales of cotton on their account, but do not wish to limit the quantity, a few bales more or less, according as freight offers; and for the payment of all shipments on owners’ account, thy bills on them, John Taber Sr Son, Portland, or me, at 60 days’ sight, shall meet due honour; all shipments on owners’ account; if the ship goes for Liverpool, address to Raihbone, Hughes 8e Duncan ; if for London, Thomas Mullet <§• Co.; if Nants or Cherbourg,” &c. “Please write me often, and keep me advised of the state of your market,” &c. “ Of thy shipments by the Mac on owners’ account, let as much go en deck as can be safely secured, and have her despatched from your port as soon as possible.”
    On the 26th January, 1806, the defendant wrote to the plain? tiff as follows: “ Since writing thee under date of the 9th in-stant, I have engaged for the ship Mac the freight of 800 bales of cotton from New-Orleans to Liverpool, agreeably to the enclosed copy of charter party; I have, therefore, to request thy exertions in despatching her for Liverpool, filling her up, either on freight or owners’ account, and particularly fill her deck and quarters on owners’ account. Her owners wish large shipments of cotton made on their account, which, if bills can be negotiated on New-York, I have informed them thee will make; I, however, am clearly of opinion, that it will be more for their in-» terest to have her filled up on freight; on this subject, I shall write thee again more fully. Captain Swaine will take with him from Jamaica 8,000 Spanish dollars, for my private account, which I wish invested in cotton,” &c. This letter was written on the. same sheet of paper, and immediately following a duplicate of the proceeding letter of the 9th January, and was received by the plaintiff the 18th March, when he wrote an answer, saying, “On. my part nothing shall be wanting to satisfy the contracting parties when ^2e ship arrives, and your instructions shall be strictly observed, conforming myself to the latter you give, and in case of necessity, 1 think it will be easy to place bills.”
    . On the 13th February, 1806, the defendant wrote to the plaintiff, as follows: “ Enclosed I-hand thee a letter from the owners of the ship Mac, to which I have only to add, that thy bills on me, for their account, for the cotton they order shipped by the Mac, shall meet due honour.” The letter enclosed was from John Taber S' Son to the plaintiff, dated Portland, January 30th, 1806, and was as follows: “We wrote the 24th instant, since which, we have received a letter from Jacob Barker, informing that he had engaged 800 bales of cotton for the Mae, previous to her sailing from New-York, from your port to Liverpool, which has fixed her route. As she has so much freight engaged, we flatter ourselves that she will be filled up immediately. It is our wish to have 200 bales good cotton shipped on owners’ account, and as much more as may be necessary to make despatch, as we are not willing to have her detained in your port for freight. To reimburse thyself for cotton purchased on owners’ account, thou may draw bills at 60 days’ sight, either on Jacob Barker or owners. If thou can sell bills on Rathbone, Hughes S' Duncan, merchants at Liverpool, at par, thou may draw on them; taking care not to send the bills before she sails; and to write to get any insurance made on account of property shipped on our account. Thou need not write to get any insurance made on the freight, as we shall soon write them to get the freight insured, as likewise to accept thy bills, to the amount of.cotton shipped on our account, which they will do, on the receipt of the invoice and bill of lading. We wish thee to be careful to procure the necessary certificates,” &c. A duplicate óf the letter of the 26th January was enclosed in the letter of the defendant of the 13th February, written on the same sheet, which, with the enclosed letter from John Taber S' Son, was received by the plaintiff the 27th March, 1806,
    On the 15th February, 1806, John Taber S' Son wrote to the plaintiff as follows: “We wrote thee on the 30th ultimo, respecting the ship iliac, to which we refer; only add, that from present prospect we had much rather have her filled on freight than to load on owners’ account,” &c. In answer to the preceding letter, of the 30th January, the plaintiff wrote to John Taber S' Son, on .the 27th March, 1806, as follows: “ Tour much respected favour af the 30th January last, came duly to hand. I observe what you say respecting the purchase of cotton for your account, to go by ship Mac, of which our friend Jacob Barker likewise makes mention. This ship has not yet made her appearance, but as soon as she does, you may depend on my utmost exertions to follow your orders, and give the ship all despatch that lays in my power. The mode of reimbursement for purchases made here, will be by drawing on our friend Barker, agreeable to his advice, as I think it will be less difficult for me to place bills on Ncrv-York, Cotton is rising.” &c. “As for drawing on Liverpool, it is altogether out of my power’, for such bills are seldom asked for here,” &c. Again, on the 7th April, the plaintiff wrote to John Taber <8- Son, as follows: “ I beg leave of reference to my las! respects of 27th last month, since which am favoured with your much esteemed 15th February. The Mac is in the river. I have . this day seen Captain Smaine, and expect that the ship xvill be up in a day or txvo. I observe what you say with respect to preferences of freight,” Sec. “Hoxvever, I shall punctually folloxv your instructions, and do for the best, as much as lays in my poxver.”
    On the 10th March, 1806, Taber Sr Son xx’rote to the plaintiff, repeating their preference of a full freight for her, rather than loading her on owners’ account, and mentioning their having written to Rathbone, Hughes S" Duncan to accept the plaintiff’s bills, &c. The plaintiff xvrote, in ansxver, on the 1st May, 1806, mentioning the difficulty in procuring freight for England, and concluded by saying, “ that no endeavours should be wanting on his part to merit the confidence they placed in him, and that, he xvould not fail to communicate with them by every opportunity.”
    On the 24th March, 1806, Taber Sr Son wrote to the plaintiff, and requested him to have the Mac despatched as soon as possible, and not to detain her for freight. And they add, “ it is our choice to have 500 bales of cotton shipped on owners’ account, rather than to have her detained or to take a freight at a low rate, as we are apprehensive, &c.” To this letter the plaintiff answered, on the 5th June, 1806. “ I have received your favour the 24th March, and observe that it is your xvish,” &c. “ I shall try to execute your orders, should it be necessary for the final despatch of the Mac; but there appears so little probability,” &c. “ Should circumstances authorize my purchasing for your account, I shall in preference value for the moment on Mr, Jacob Barker.”
    
    
      On the 29th June, 1806, Taber Sr Son wrote to. the plaintiff saying 44 they had been expecting to hear, that the 800 bales contracted for, would have been ready,” See. “ and expected he would have purchased a sufficiency to fill up, on owners’ account, provided freight did not offer in season.” “ We have this day written to Barker to give thee and Captain Swaine such directions as he may think proper; but we hope she will be despatched for Liverpool, before this reaches thee, as it is our wish to have her go there.”
    On the 29th August, 1806, the plaintiff answered, that he had ’ . 44 in vain expected further directions from Mr. Barker,” &c. “ I shall wait a few weeks, and if nothing occurs in favour, give Capt. Swaine orders to return to New-York.” “ If I receive no further orders by the time the Mac sails, I shall send the balance due you in specie, no bills being to be had.”
    On the 24th July, 1806, the defendant wrote to the plaintiff, and after expressing his regret at the delay of the charterers in procuring the freight for the iliac, 'agreeably to charter-party, and giving him directions, rather than delay longer, to receive the demurrage, break up the charter, arid despatch her to Liverpool, on owners’ account, taking all the freight that offers, &c. he adds, 44 Though I say fill her up with cotton, &c. on owners’ account, thee will please to!’understand that I should prefer her being despatched agreeable to charter-party; if that cannot be done, I prefer her taking freight for Liverpool, excepting about 500 bales the owners wish shipped on their account; yet, rather than have her idle, the owners wish her loaded on their own account, for the payment of which thy bills on me shall meet due honour, at 60 days’ sight, which I presume thee can easily negotiate,” Sec.
    
    On the 15th July, 1806, Taber Sr Son wrote to the plaintiff, acknowledging the receipt of his letter of the 5th June, and mentioning that they had written on the 27’th June, directing him to follow Barker’s instructions respecting the Mac, adding, 44 which we now confirm, and say we wish thee to follow his instructions at all times, the same as from us.” On the 25th and 30th July, the 3d and the 11th November, 1806, Taber <§• Son wrote several letters to the plaintiff, relative to the Mac. In the letter of the 11th November, they say, 44 We do not pretend to give thee positive orders respecting the Mac, as we have heretofore directed thee to follow Jacob Barker’s directions; but we will give thee the following slretch of our wishes; via. to have the Mac despatched to Liverpool,” #c.
    
    
      X)n the 16th September the plaintiff wrote to Taber 8' Son, acknowledging the receipt of their letters of the 15th, 25th and 30 th July, and saying, “ Mr. Jacob Barker has likewise wrote me, and shall follow his instractions as far as lays in my power. If any produce was to be had this moment, I might be able to accomplish the order; but not a bale of cotton is -offered for sale,” &c. On the 26th September, the 3d October, and the 7th November, the plaintiff wrote several letters to Taber <§• Son, mentioning the. Mac having been injured in a gale of wind, &c. and on the 12th December he wrote them, acknowledging their letter of the 3d of October, saying, “ the ship is now nearly ready to take in her cargo.” “ I have not yet commenced the purchase of cotton; .only small parcels have yet come to hand; as soon as I can succeed, I -shall value upon Jacob Barker for the amount,” &c.j . •
    On the 6th September, 1806, the defendant wrote to the plaintiff, referring to his former letter, ordering a protest against the charterers of the Mac, and the vessel to be despatched to.Liverpool on owners’ account, &c. and adds, “ I now confirm that order, and request, if a full cargo be not engaged for the Mac, on receipt of this, that you ship 200 bales of cotton for my account to the address of Martin, Hope 8r Thornley, and thy bills on me, at 60 days, shall meet due honour for the same.” And on the 10th -October the defendant again wrote to the plaintiff, as follows: “By thy letter of the 29th August, to 1. Taber 8- Son, I observe thee had an idea of sending the Mac here, if a freight did not soon offer, which I think thee would not, on reflection, do, if a freight for this port did not offer, as she had much better remain at New Orleans than be sent home in ballast. I therefore request, if she is not despatched agreeable to charter-party, that she remain at your port, until a freight can be obtained for her, with what thee can ship on owners’ account. They wish, at least, 500 bales of cotton,” &c.
    In a letter to the plaintiff of the 26th November, the defendant writes ; “ I wish the Mac got off as soon as possible and prepared for a voyage; when I wish 500 bales of cotton shipped, on account of her owners, to Liverpool, and the ship filled up with freight goods even at a low rate; if freight should be scarce, and thee can "purchase good flour at 4 or 4 1-2 dollars per barrel, thee will please ship 500 to 1,000 barrels on account of the owners of the Mac,” &c. “ If cotton falls to 20 cents, please to ship 500 bales of cotton on my account, consigned to Marlin, Hope 8" 
      
      Tkornley, drawing on me at 60 days for the same,” &c. On the 29th December, the defendant writes to the plaintiff: “ If thee has contracted for the cotton, or any part thereof, that I ordered, let all that has been contracted for be shipped according to my last request; but do not purchase a bale for my account after this letter reaches thee, above 16 cents, as that article has been very dull at Liverpool,” &c. This letter was received by the plaintiff the 17th February, 1807. On the 17th of February, 1807, the defendant wrote to the plaintiff as follows: “lam in daily ex* pectation of hearing of the Mac's progressing for Liverpool. Before this reaches thee I hope she will have sailed; if not, please to lose no time in despatching her. That thee may be fully acquainted with the wishes of her owners, I annex a copy of the last letter I have received from them, and request thee to comply with their wishes in every particular.” This letter, with the copy of a letter from Taber 8c Son to Barker, dated the 9th February, was received by the plaintiff, but at what time did not appear.
    On the 15th April, 1807, the defendant wrote to the plaintiff, informing him of the failure of Taber 8' Son, and requesting him to use every precaution possible^ to secure the defendant’s claim on them for the cotton shipped by the plaintiff, for their account by the Mac, and advising him, if the Mac had not got clear of the river, tó have new bills of lading made out, consigning the cotton to the order of the defendant. On the 16th and 30th of April, 1807, the defendant wrote to the plaintiff, as to taking measures to have the goods in the Mac stopped on account of the plaintiff, in transitu, and enclosing copies of letters written to Martin, Hope 8c Tkornley, and to Rathbone, Hughes 8c Duncan, for that purpose, which letters were received by the plaintiff the 18th June, 1807. In the letter of the 30th April, the defend- ' ant says, “ At foot I hand a list of all thy bills which have appeared, all pf which have been accepted, and all will be protested for non-payment, but the holders furnished with the full amount, to prevent the least possible disappointment, which proceeding is absolutely necessary to enable thee to stop the property in transitu, under the law authorizing thee as shipper to do so,” &c.
    The plaintiff, on the 22d January, 1807, wrote to Taber 8c Son-us follows: “ I have written this day to Mr, Barker, and keep ' him advised of the state of affairs here, Upon his remarks on the Subject of demurrage, I have unconditionally passed to your account the total sum paid in, and shall employ the funds for the. •expenses of the ship, and the surplus for the purchases of cotton - for your account. I am happy to inform you that I have already made a commencement, and have purchased 72 bales at 22 Cents,” &c. “I shall, as opportunity offers, draw upon Mr. J. Barker for the amount, and complete the 500 bales to be shipped for your account, which will be absolutely necessary to procure a full freight.” “I valued on Mr. Barker 1,800 dollars, which sum is passed to your credit. I need not recommend you to take-the measures in order to have my draughts duly honoured by that gentleman,” &c.
    On the 13th February, 1807, the plaintiff wrote to Taber & Son as follows: “Your favour of the 11th November only came to hand,” &c. “I have engaged 150 bales cotton at market price, for your account, which I expect in town in a few days, and shall ship the same, without delay, on board the Mac," &c. “I add you a note of my drafts upon Mr. J. Barker, on account of this shipment for your account, and shall keep you constantly advised of my proceedings.” Again, oil the 6th March, 1807, the plaintiff wrote to Taber <$■ Son that he had procured a full freight for the" Mac, and that she would be despatched in all that month, for Liverpool. That he should ship on board, for their account, 500 bales of cotton and 30,000 staves, &c. and he adds, “ I have, since my last, valued upon Mr. J. Barker for 600 dollars, and 10,000 dollars, on account of these purchases, and shall continue to draw as occasion offers.” “ I have communicated to Mr. Jacob Barker the present state of affairs.” “ I have already purchased for your account, 354 bales of cotton and 30,000 staves.”
    On the 20th March, 1807, the plaintiff informs Taber 8r Soip that he had valued on them for the sum of 10,000 dollars», in two bills of 5,000 dollars each, at sixty days’ sight, to the-order of Thomas Elmes, Esq.; and adds, “ which drafts • go on account of cotton purchased for your account and shipped on board of the ship Mac. It is upon the particular request of Mr. Elmes that I have altered the mode of my drawing direct on Mr. Jacob Barker" On the 17 th April, the plaintiff again wrote to Taber & Son, informing them that the Mac had sailed for Liverpool, having on board 500 bales of cotton, purchased on their account, and 549 bales on freight, and adds, “ Enclosed I hand you the invoice and bill of lading of the former, amounting to 33,098 dollars and 31 cents, for which you will olease credit my account;” that the .staves being of inferior quality he did not ship them; that Cap.t. Srvaine had taken with him all the necessary documents to recover from the underwriters. On the Mac ; that the amount of expenses incurred since the gale until she was afloat, &c. were 3,042 dollars and 35 cents, .copies of which papers he had kept. On the 2.4th April, the plaintiff wrote to Taber 8 Son, enclosing their account current to that day, and other papers, and stating a balance due to him of 1,276 dollars and 57 cents, for which he says, “ I shall value on you as occasion may ofler.”
    On the 3d July, 1806, the plaintiff wrote to the defendant, acknowledging the receipt of his letter, of the 23d April, and duplicates of those of 20th and 27th February and 5th March, and said, “ It is sometimes so difficult to place the bills on your place, that I was obliged to draw whenever I had an opportunity, and sell at sixty days’ credit, in consequence of which I was always considerably in advance for you,” &c. On the 26th September, 1806, the plaintiff acknowledged the receipt of the defendant’s letter of the 24th July. After speaking of the disaster which happened to the Mac, he adds, “ Nor can I flatter you of procuring either freight for her, or accomplishing your order before December,” &c. In another letter of the 12th December, 1808, to the "defendant, the plaintiff speaks of the difficulty of ■placing his bills, which he did not always find practicable. On the 22d January, 1807, he mentions, in a letter to the defendant,' that he expects to find an opportunity of placing his bills on the defendant, and advises him of the purchases he had made, and of ú draft of 1,800 dollars on him. Another letter of the same date ‘advises the defendant of three other drafts- on him by the..plaintiff. On the 13th February, 1807, the plaintiff, in a letter to the defendant, says, “ at all events, I shall keep you duly advised of my proceedings,” and mentions two more drafts on the defendant; and again, on the 16th February, he advised the defendant of another draft on him of 600 dollars. On the 3d March the plaintiff advises the defendant of having drawn on him, in two bills, for 10,000 dollars, in favour of Mr. Thomas Elmes. On the 6th March, the plaintiff, after mentioning the purchases he had made for Taber 8 Son, &c. adds, “ I shall continue to draw on you as ■occasion presents;” and on the 11th March informs him of a draught for 6,000 dollars in favour of Francis Depau, at 60 days; and on the same day, advises the defendant of another draught on him for 691 dollars and 50 cents. ■
    
      The plaintiff, on the 20th May, 1307, wrote to the defendant, saying that his letter of the 15th April had just reached him, and that it was with much regret he learned the failure of Taber 8 Son, and hoped the defendant would not be a sufferer, and that he had taken timely precaution, &c. speaks of the Mac having sailed on the 23d April, and adds, “ For your government I enclose you the invoice and bill of lading of the 500 bales of cotton shipped per Mac; also my account current with Messrs. Taber 8 Son, according to which a balance of 1,250 dollars and 25 cents, for which amount I shall value on you as occasion offers. You will, I hope, have taken the necessary measures to meet my drafts dated March 20th, drawn direct on Messrs. Taber 8 Son, payable in New- York, of which I advised you.” This did not, however, appear from the case to have been the fact.
    The plaintiff’s counsel read in evidence two bills of exchange, drawn the 30th January, 1809, by the plaintiff, on the defendant, one for 10,055 dollars and 35 cents and the other for 2,193 dollars and 93 cents, with the protests for non-acceptance and non-payment. The bills were accompanied with a letter of advice, mentioning that the first bill was for the balance due for the purchase of the 500 bales of cotton, and the other for disburse* ments of the ship Mac, and 1,000 dollars damages, paid on the two drafts on Taber 8 Son, returned protested for non-payment.
    The plaintiff proved that the ordinary rate of interest at New-Orleans, was IQ per cent, per annum, and exhibited an account claiming the balance thereon, with such interest. The defendant objected to the commissions, charges of shipment, and damages on bills, charged in the account, stating that if he was liable at all, it could only be for the purchase of the cotton, according to the express terms of the guaranty. By consent, the jury took the account with them.
    The judge charged the jury that he inclined to the opinion that, the bills drawn by the plaintiff on the defendant, of the 30th Ja - nuary, 1809, and the communications made at that time, did not create any liability on the part of the defendant. But without any express direction on that part of the case, he said, that in his opinion, the plaintiff was entitled to recover on the previous transactions and correspondence between the pjariies, and to recover the amount stated in the account of the plaintiff of the 10th January, 1812, being 12,257 dollars and 28 cents, with the interest thereon, at the rate of 10 per cent, per annum, from the. 24ih April, 1807.
    
      A bill of exceptions was tendered to the judge. The jury found a verdict for the plaintiff, for 15,904 dollars and 33 cents.
    A motion was made by the defendant’s counsel to argue the the bill of exceptions, and also a motion for a new trial on a case made. When the argument was about to be opened on the part of the defendant, Pendleton, for the plaintiff, objected that the bill of exceptions had not been regularly taken; that the exceptions were not made until the jury had returned into court with their verdict, though before it was actually delivered. The exceptions, how ever,were not in fact reduced to writing during the sittings. The new act, requiring bills of exceptions to be argued •before a writ of error was brought, had made no alteration in the practice.
    
      Hoffman and Wells, for the defendant,
    coni ended, that' whatever the contract might he, the defendant stood precisely in the character of a surety for Taber & Son ; that all the letters showed throughout that Taber S' Son were the principals, and the persons beneficially interested; and considering the defendant as a surety, he was to be held responsible only according to the strict letter of his instructions or of the contract.
    Then, whatwas the contract? We contend, it is precisely this, and no moreFor whatever cotton you, Lanuse, shall ship in the Mac, for account of Taber S' Son, I, Barker, will honour any bills drawn on me, Barker.” This contract does not extend to any bills which the plaintiff might think proper to draw on Taber S' Soni The engagement of the plaintiff arises either from the letter of the 9th January, 1806, or the letter of the 13th February, or that of the 24th July, 1806. The two first were received by the plaintiff before the Mac arrived. The letter of the 13th February first introduces Taber $• Son to the plaintiff as correspondents, and from that period, the plaintiff acts under the orders 
      of Taber Sr Son only. Whenever the principal steps in, anil takes the direction of the business, there is an end to all previous orders of the agent.
   Per Curiam.

The bill of exceptions was tendered in seagofi, as to any exception to the charge of the judge, but it was not ten- ' dered in season as to any question of evidence arising upon the trial; for the party, if the exception had been made at the time, •might have waived or supplied the evidence. (Wright v. Sharp, 1 Salk. 288. Jones v. Ins. Co. of N. Am. 4 Dallas, 249.)

The bill of exceptions was amended according to this opinion of the court.

Again, the plaintiff considered the order contained in the de» fendant’s letter of the 9th January as completely abrogated. From the 13th February to the 24th July the defendant sent but one letter to the plaintiff, and that one of no importance. He had wholly disappeared from the contract. The principals alone appear, and there is a long chain of correspondence between them.

Again, the plaintiff promises to keep the defendant duly ad» vised of all proceedings, yet he never did advise the defendant of the two bills in question, amounting to 10,000 dollars, drawn direct on Taber & Son. By neglecting to keep the defendant advised of the bills, the plaintiff lost, according to the principles of commercial law, his right to have recourse to Barker, in case of the failure of Taber ¿¡- Son. By this neglect, the plaintiff must be considered as having waived all right to call on the defendant.

Pendleton, contra, insisted,

that there was an original, positive and substantive engagement on the part of the defendant, that all bills drawn by the plaintiff, on account of the Mac, should be paid, whether those bills were drawn on the defendant or on Taber 8r Son. The letter of the 13th oí February, 1806, contains this contract, and if it was not revoked, or changed, by any new agreement between the parties, there can be no doubt of the liability of the defendant.

Then, was there any such new agreement? The defence rests on the validity of the position, that there was a new agreement substituted in the place of the first engagement. All written documents relative to one subject matter, must be construed, together as one instrument. This was a mercantile transaction; and the whole correspondence between the parties is to be taken together as forming one contract; and where the latter part is in - consistent with, or contradictory to, the former, it must so far revoke or modify the preceding matter. Such transactions are usually carried on by letters, and this rule is, therefore, peculiarly applicable to them. Another principle of construction is also to be observed in relation to such contracts. They are to be so construed as to be rendered definite and certain. Certainty is of the highest importance in all commercial transactions, especially in matters of agency. Any ambiguity ought not to be turned against the agent, but he should be held to a strict observance of instructions. To establish a departure from the original in- ' stractions, there should be either an express revocation of them, or a subsequent order, or act, inconsistent with such original instructions. Now, it is not pretended, in the present case, that there was any express revocation of the former instructions: nor is there any inconsistency or contradiction in saying, on the 9th of January, “ I will honour any bills on Taber S' Son, or me,” and on the 13th of February, or 24th of July, “thy bills on me for their account shall meet due honour.” The defendant does not Say “ thy bills on me only,” nor does he use any words negativing what was said in the first letter, as to bills on Taber Sr Son. The drawing of bills on Taber Sr Son, or on Barker, was merely for the sake of greater facility in negotiating a sale of bills,, só as to reimburse the plaintiff for his advances in the purchase of the cotton ordered. Suppose the plaintiff had neglected to execute the orders to purchase cotton, load and despatch the ship, because he could not sell bills on Barker, when he might have sold bills oa Taber S' Son; might not they or the defendant have justly objected to the plaintiff that he was not limited to drawing bills on Barker only, and have held him responsible for a neglect of orders, and a failure of the enterprise ?

It is said that the last orders are always to be observed. True. But there is nothing in the subsequent letters that revokes or varies the plan of the enterprise laid down in the first letter. If the letter of the 24th of July is to be considered as altering or revoking the letter of the 9th of January, then the next letter of the 26th of September, which is wholly silent as to any guaranty whatever, might be considered as revoking all former engagements.

Letters containing orders of this kind, wheré an agent is concerned, are not to be subjected to nice criticism, but ought to be taken in their natural and plain sense. And if that alone is looked for, then, according to the internal and external evidence of the whole transaction between the parties, it is clear that the guaranty contained in the letter of. the 9th of January, was never revoked, hut was continued. Both Taber Sr Soti and the defendant were extremely solicitous that the Mac should be expedited, with all possible speed. Their orders for this purpose, and for the ¡purchase of 500 bales of cotton, were reiterated and urgent; they Sever could have intended, therefore, to diminish the chance ef the agent’s procuring funds, by the sale of bills, especially when he frequently expressed the great difficulty of placing bills.

There is a fallacy in the argument of the defendant’s counsel, in confounding orders and instructions given to govern the con-duet of an agent, with a contract of guaranty or suretyship. The defendant was a surety cr guaranty so far as regarded Taber S' Son, but in respect to the plaintiff, both Taber S' Son and the defendant were principals, and the plaintiff their agent,

Kent, Ch. J.

delivered the opinion of the court. It is evident from every part of this case, that the defendant was merely an agent and surety for Taber St Son, and that the plaintiff, at the time of the creation of the debt in question, knew of this fact, and that the debt arose on their account, and for their benefit, and not on the account, or for the benefit, of the defendant. He is, therefore, not to be charged beyond his positive obligations by contract.

The claim upon the defendant for the payment of the two bills of the 20th of March, 1807, is founded on his letter of the 9th of January, 1806, in which he stated that the ship Mac was gone to New Orleans, in pursuit of freight, and that he wished her loaded on owners’ account to 500 bales of cotton, and that for the payment of all shipments on owners’ account, the bills of the plaintiff on Taber St Son, or on him, at 60 days’ sight, would meet with due honour.

If there had been no other letter than this, and the plaintiff had acted upon it with reasonable diligence, the defendant would have been responsible for bills drawn upon Taber S' Son. But the defendant, in his letter of the 13th of February, 1806, enclosed one to the plaintiff from Taber 8' Son, in which they assume the character of owners and principals in the transaction, and give directions accordingly, and instruct the plaintiff to draw on them, or on the defendant, or on the house of Rathbone, Hughes S' Duncan, at Liverpool; and the defendant, at the same time, instructs the plaintiff, that his bills on him, the defendant, for account of Taber S' Son, for the cotton they may order to be shipped, shall be duly honoured. The defendant writes again, to the same effect, by his letter of the 24th of July, 1806. These letters were all received before the shipment was made, or the cotton purchased; and it was upon the credit of those letters, and in obedience to the instructions of Taber S' Son, and of their agent, as contained therein, that the shipment was made. This appears evident from the plaintiff’s letter to the defendant of the 26th of September, 1806, and of the 22d of January, 1807.

When Taber Sc Son were introduced to the plaintiff, as owners of the ship, and exclusively interested in the adventure, he immediately and steadily acknowledged them as such, and promised to obey their orders. This appears by his letters of the 27th of March, the 7th of April, and the 5th of June, 1806, all of which were addressed to Taber St Son. And in all his subsequent correspondence he looks up to Taber Sc Son as his principals, on whose account, and under whose orders he acted, and the defendant was considered as an agent merely, who had assumed to pay the drafts on himself. This interference of Taber St Son, as principals, and this recognition of them as such by the plaintiff; this new and specified responsibility of the defendant, and the continued evidence of the plaintiff’s assent to the new arrangement, and the creation of the debt in question, long after had taken place, appear to me to be sufficient to prove that the defendant was not holden beyond the terms of his letters of 13th February and 24th July, 1806, and, consequently, that he was not bound to answer for any bills not drawn directly upon himself.

There was a variation, by the assent of all concerned, in the terms of the engagement contained in the letter of the 9th of January, 1806, and it would be contrary not only to the understanding of the parties, but to the principles upon which the rights of a surety rest, to revive and apply to this case the antecedent engagement of the defendant. That engagement was made before Taber Sc Son had introduced themselves to the plaintiff, and under circumstances which afterwards ceased, to exist. It was modified and merged in the new contract, which arose in consequence of Taber Sc Son making themselves known, and taking a direct and controlling part in the business, as owners. They declare that the defendant was their agent, whose instructions the plaintiff was to follow, and they prescribe the mode of reimbursement, to which the defendant assents as far as depends upon him, The plaintiff also assumes these new propositions as the basis of his conduct, and of the credit he was to give. He acknowledges his obligations to Taber S' Son for their confidence; he promises to execute their orders and follow their instructions; he informs them why he shall, from time to •time, elect one mode of reimbursement offered to him, in pre» ference to the other, and why he shall prefer drawing on the defendant, because of his residence in New-York; but he reminds Taber 8? Son to see that his drafts on the defendant are duly honoured; and he sends them a note of his drafts on the defendant, and promises to keep them advised of his proceedings, and should continue to draw as opportunity offered. This he did so late as the 3d of March, 1807. But on the 20th of that month he altered his mode of drawing, and drew the bills in question on Taber 8r Son, and gave no immediate advice thereof to the defendant. He was accordingly not bound to pay these bills, and the subsequent draft upon him so late as the 30th of January, 1809, was clearly without any existing authority. The delay of nearly two years after drawing on Taber # Son, was a waiver of the right to draw for the same debt on the defendant. It was the same, in effect, as giving a new and extended credit to Taber & Son; and it would be destructive to mercantile confidence and safety, and especially to the interests of agents and correspondents, to allow of a valid resort to the surety after such a delay. It may well be presumed that he would in the mean time, be lulled, by a false confidence, that no such unsatisfied debt existed, and be ready to surrender up to his principal all his means of indemnity.

It may appear to be reasonable that a resort to Taber 8r Son0 in the first instance, should not prejudice the claim of the plaintiff on the defendant, as it would appear to be for the benefit, and not to the injury of the defendant, that the first resort should be to his principals. But it is suEcient to observe that the contract was different, and that the surety is only to be held according to the sound interpretation of the terms of his contract. The parties must have had suEcient reasons, in their own view of the subject, for prescribing the mode on which the responsibility of the defendant was to depend; and it would be hazardous to say that there were no good reasons arising out of the complicated concerns of the trade in which the parties were engaged., for confining the defendant’s engagement to the terms prescribed. Courts are not, indeed, to construe so literally the contract, even of a surety, as to defeat the spirit and sense of it; nor, on the other hand, are they to vary and extend the contract, because ' they do not perceive any inconvenience or reasonable objection to the modification assumed. It is suEcient for the surety to reply non Ikec in fiedera veni* There are many cases in which it has been established that a surety is not held, if there be any vari~ atjon from the terms of his contract, however immaterial the variation niay appear to have been in the given case. (Myers v. Edge, 7 Term Rep. 254. Ludlows v. Simond, 2 Caines' Cases in Error, 1. Walsh v. Bailie, 10 Johns. Rep. 180.) Here was an election given to the plaintiff. He was at liberty to draw on Taber Sc Son, or on their sureties at New-York or Liverpool. He elected, for a while, to draw on the defendant; and then he elects to draw on his principal, and gives no notice to the defendant of the drafts, or at least, no notice consistent with his former practice, or with mercantile promptitude and diligence. The defendant was, consequently, discharged by that election, and not holden for the payment of those bills, any more than he would have been holden, if the bills had been drawn on the house in Liverpool.

The court are accordingly of opinion, that the verdict must be set aside, and a new trial awarded with costs to abide the event Of the suit.

Van Ness, J. dissented.

New trial granted.  