
    COWLES vs. TOWNSEND & MILLIKEN.
    [assumpsit on guaranty op promissory note.]
    1. Conflict of laws as to construction of contract. — When a guaranty is executed in this State, and the promissory note on which it is endorsed is also payable here, the liability of the guarantor must be determined by the laws of this State.
    .2. When misrepresentations constitute fraud. — A misrepresentation as to the legal eii'ect of a written contract, ’does not, pe>' se, constitute a fraud; nor is the other evidence in this case sufficient, in connection with such misrepresentations, to establish a fraud, under the former decision of the case, 31 Ala. 428.
    Appeal from the Circuit Coujrt of Montgomery.
    Tried before the Hon. JOHN Gtll Shorter.
    This action -was brought by the appellees, and was founded on the appellant’s guaranty of a promissory note, which was endorsed on the note, in these words: “I guaranty payment of the within,” (signed,) “ George Cowles.” The note was for $5Si 50. made by Eudler & Jlockwell, dated September 28, 1849, and payable eight months after date, to the order of the defendant, (not the plaintiffs, as stated in the former report, 31 Ala. 428,) at the office of- J. S. Winter & Co., Montgomery, Alabama. No pleas appear in the record. On the trial, as the bill of exceptions shows, Sifter the plaintiffs had read to the jury the note and guaranty on which the suit Was founded, the defendant offered in evidence the depositions of Michael Rudler and Geo. W, Read, and a letter written by the plaintiffs to him, dated New York, November 15, 1849, which was in these words: “We have your' esteemed favor of the 6th instant, with enclosures as stated'.- You will find enclosed, returned herein,-the note for $5S1 60, which we must ask you, in accordance with our agreement, to guaranty, either specially on the back by endorsation, or by attaching a wi'itten guaranty, ■ If on the back of the note, please endorse, ‘I guaranty-payment of the Within’; if oil paper attached, ‘ I guaranty to Townsend & Milliken payment of the note ■ in their favor, made by Rudler & Rockwell, dated Septem---ber 28,-1849, at 8 months, payable at- office of j. Winter ' & Co., Montgomery, Alabama,’ This is the proper form - of guaranty, and does uot giré recourse against you b the holders of the paper, until they have gone to the end off the law against the payers, We are very much pleased with Mr. Rudler, and feel satisfied lie will do all he can faithfully to administer the property. ■ Athe same time, - your own business intelligence will sugge'st to you the propriety of requiring a compliance with the terms, as agreed on, of our credit to him/’ Michael Rudler was one of the partners of the firm of Rudler & Rockwell, and 1 testified, that the note Was not presented tó them, at maturity, for payment ;--that the firm was 'then perfectly solvent, and the note, if not paid, might have been collected, or at least secured, -. His answer to the 6th iutérrogatóry was in these words: “‘The agreement and understanding, under" and by virtuo of which George Cowles guarantied the ' payment of 'said noté, Was - this :' that'the said Townsend"' & Milliken. should not-call ‘upon him, until they had prose---cuted Rudler & Rockwell to judgment or insolvency. The ■Understanding was, that-in-the event’of R. & It; not paying-'the note at maturity, Townsend & Milliken were' to use alt proper and lawful means to collect the same, before they had any right to call on said Cowles, This Was‘the agree toent, as I understood at the time, and ever since.” Geo. W. Bead also testified to the solvency of Rudlev & Rock* well at the maturity of the note. “ The defendant also introduced one J» B. Gowen as a witness, who testified, that before and at the execution of the said note by Rudlei & Rockwell, and before and at the time of the making of 'the guaranty thereon by the defendant, the plaintiffs resided in the city of New York, and were, and had been for many years, merchants in copartnership in said city} and that the defendant,' before and at the making of said note and guaranty,- resided in- Montgomery county, Alabama.” The phfin tiffs then-'-infcroduced the deposition of one J. B. Cronin-, who testified to the insolvency of Rudlei & Rockwell in the fall of 1851, and to his own unsuccessful efforts, as an attorney, to collecCfrom -them the amount due on the said note 5 and a letter written by- the defendant to the plaintiffs, dated- Montgomery, Becember- 1, 1849, Which was in these words .* -’“Enclosed you have Rutiler & Rockwell’s note, .signed as requested. 1 shall probably have some funds in my hands, belonging tcHRudlerj'in a' short’‘time ; if so, I shall-remit it without'delay;’*’ This being nil the evidence in the cause, the court excluded from’ the jury, on the plaintiffs’ motion, the plaintiffs’ letter -td the defendant, above-copied, and the answer of the witness Budler to the 6th interrogatory 5 -and then instructed the jury, “ that if they believed all the evidence in the cause to be true, they must nevertheless find a verdict for the plaintiffs.” To both of these rulings of the court the defendant excepted, and he now assigns the same as error;
    Watts,. Judge & Jac&soñ, for the appellant.
    Goldthwaite, Rice & Sbmple, contra*
    
   STONE, J.

The note, on Mr. Cowles’ guaranty'of which this suit is based, is, on its face, payable 'at *Mn>nt-gS>mery,;.Akbama-f and is, therefore, as to its binding stipulations, .governed by the laws of Alabama.—Kittrell v. Evans, 33 Ala. 449. The letter of Townsend & M-illiken to Mr. Cowles, dated November '15th, 1849, and the reply of Mr. Cowles, dated December 1st, 1849, (both of which were in evidence, and are copied in the record,) show that Mr. Cowles executed the guaranty in the State of Alabama. His liability, then, must be governed by the laws of Alabama.

When this case was before in this court, (31 Ala. 428,) the same evidence on the question of fraud in procuring the guaranty was in the record, as is found in this record, with the exception of the testimony of Mr. Gowen, after noticed. Speaking of that evidence, we said, it “ should have been admitted ; and if no other evidence on the point was adduced, the court should, when the evidence was closed, have excluded it.” The testimony of the witness Gowen was to the effect, that before and at the time of the execution of the guaranty, the plaintiffs were merchant copartners in the city and State of New York, and the defendant a resident of Montgomery, Alabama. These facts can exert no influence upon the questions of either •law or .fact, as presented by this record.

The rulings of the circuit court were in strict conformity with the opinion of this court on the former hearing, and its judgment is consequently affirmed.  