
    &OURT OF APPEALS, JUNE TERM, J82U
    Ferris vs. Walsh.
    jiiatalffbmade''a antreacthe 'payi Sfefrom f.™o the •depend1'üponmthe011 evidencedin ^the qSíonoña'v.to '«ourt?'dld by 4110
    tobáceo fór B to taicen . bi3 note therefor, B, <Jesi: rous of realizing the money due a'ietter’ tó^A^réí questing: bin’ rantee^the" pro-co!andfto1aybfoi’ Sight draw, 'if MMpttTby biri, states'tito annrant thorises8’ him a“ó mount after <ie withTper.’ct^exifcliange on a part thereof, making' ño mefftion of the aubjecf. of tee. B makes the deductions, and b aípaid byA1'cb part”of Sis dio"e, aíé^ra» pbid;md SSM&tih B’s“°St-He°d,P. ivilh b to'guaíFÍ tacco sold,
    Appeal from Baltimore county court, This was an ac-i'10U of assumpsit^ and the declaration contained counts for work and labour, the common riioney counts, and a count an insimul conipuf assent. Tlie general issue was pleaded. At thé trial below, the plaintiff (now appellant,) gavé id evidence, that on the 12th of March 1816, án account was stated and agreed to between the plaintiff and defendant, stating the nett proceeds on the áalés of four hbgsheads of tobacco, sold by the plaintiff for the defendant in • x . New Yoik, to be §423 74, and charging the defendant . , . ... . goods per invoice, and crediting the sales on the to-due the 6th of May 1816, and §25 cash received; uiaking a balance due to the defendant of §118 39. The fodr hogsheads of tobacco mentioned in the account, were sold by the plaintiff, as a commission merchant, for the de - fondant; to /. ánd J. P. Footej on the 6th of January 1816, on a credit of four months, for which they gave their promissory note páyable to the plaintiff or order, tíe further gave m evidence; that it is tlie custom or commission merchants, when they sell goods on a credit, and take notes , . . from the purchasers; to give their principals or consignees r ® r * . ® for the amodnt of the riotes; after deducting the ° commission, for selling atíd óthér^ expenses'; and iii case purchaser fails, and the note's are not paid at their maturity; to debit their employer with so much of the debt as is lost. That the ordinary commission for selling tobacco' New York, is two and an half per cent; That J. and P. Foote failed in business about the 9th of May Í8i 6,‘ the time when their note became due, and no part of it was to the plaintiff. That the defendant,' o'n the 5th of March 1816,> wrote a letter to the plaintiff, in which he' says’, siI am desirous of realizing the small balance in your hands to obtain the present favourable rate of exchange ore New York, and for that purpose I wish you to state in re-* ply, what you will charge for guarantee and discount offi she proceedings of my tobacco, and the amount for widely 1 might draw, in case the terms offered are accepted.” On, the receipt of this.letter, the plaintiff stated the account herein before, set forth, and, at. the same time addressed a. letter to the defendant, dated the 1,2th of March 1816, informing him that he had¡ made up his account, and. that, there appeared, a balance in his. favour of §118 39, and. for which sum he might draw on. him,, deducting the interest for the probable time he might pay it, together with nine per cent exchange on §25. The defendant, in answer to this letter, wrote to the, plaiqtiff on the 17th of • March 1816, stating that lie thought hq was.a little hard on. him to require.nine per cent deduction, on the §25, especially as he ought to have some' commission for the advance, and could not possibly get more than eight per cent. However, as the matter vyas small, and he thought he was entitled to some difference in the money, and interest on,the balance to the 11th of May, he had.drawn a bill for §116, which allowed §2 39 for those .purposes. The defendant at the same time drew a bill on the. plaintiff in favour, off J; M. or Older, for §116 at one clay’s sight,..which the.plaintiff paid. The plaintiff again wrote a-„letter to the defendant, on.the 10th of. May 1816,- informing him ofthe stoppage.of Messrs, Foote., to whom the defendant’s tobacco-was sold, and that their note, remained in bank unpaid; and. on, his calling on them, they stated their stoppage, to be merely temporary, and that they, would be able to pay all their creditors. In this letter he assies, “will.you. remit me,theamount, qf the note, or would you prefer my drawing on you. at a few, days sight? Be pleased to let me-know.”' T,o..'which,the defendant, on the 18th of May 1816, replied, “Since, my - letter of5th March, and your reply thereto, I have not considered.myself as interested in the. tobacco sales. You never apprised me to whom my tobacco was . sold, that I could, judge and act for myself; and my letter of the 5th March was expressly written, to realize the same without further risk, and I therein asked you what you would allow me to draw for guarantee, interest, &c. included. You replied. §118 39, including nine per cent on §25. From that day I considered all accounts closed between us conclusively.. However, as you expect those men will pay, this, subject can be discussed when your actual loss is known.” The plaintiff also gave in evidence, that no guarantee- comroisv sion was charged by him to the defendant. The defendant then moved the court to direct the jury, that if they believe the facts so admitted, and given in evidence, that the plaintiff is not entitled to recover, Which opinion and direction the court, [Dorsey, Ch. J. and Ward, A. J.] gave to the jury. The plaintiff excepted, and the.verdict and judgment being against him, he appealed to this court.
    The cause was argued before Chase, Ch. J. Buchanan, Earle, Johnson and Martin, J.
    
      Raymond, for the appellant, contended
    1. That as there was evidence applicable to the issue before the jury, it was not competent for the court to withdraw the question of fact from the jury; and the court haying done so in point of fact by their instruction, it was error. 2. That admitting the court had a right to decide the question of fact upon the evidence, or what was equivalent to doing. 90, to instruct the jury how they must find their verdict, the court erred in deciding the question of fact; and that upon the evidence in the record, the verdict ought to have been in favour of the plaintiff. On the first point he cited 1 Phill. Evid. 13; and on the second point he cited 2 Esp. Dig. 590.
    
      Winder argued for the appellee.
   Martin, J.

delivered the opinion of. the court. Two questions are presented for the consideration of the court in this case:

1st. Whether it was the province of. the court, or of. the, jury, to decide on the liability of the plaintiff to pay the money, due from J. and J. P. Foote to the defendant?. And. 2d. If the construction- given to the contract, by the. court be correct?-.

Whether the plaintiff made a contract tp guarantee the. payment of the money due from Messrs. Foote, for the tobacco sold to them on account -,of Walsh, must depend, upon the letters and written evidence in the cause, and is a question of law, to be decided by the court, and not a fact to be submitted to the jury. ■ This doctrine is. too-well established, both by authority and universal practice, to admit of doubt. A similar 'question was decided in, the case of Macbeath against Haldirnand, in 1 Term. Rep. J80, where Lord Mansfield observes, “It was objected^ whether the defendant had made himself liable or not was a question which ought to have been left to the jury to decide. But there was no evidence which was proper for their consideration; for the evidence, consisting altogether of written documents and letters, which were not denied, the import of them was matter of law and not of fact. ”

To form an opinion upon the second question, a reference to some part of the testimony in the record will be necessary to show the situation of the parties at the time, their correspondence by letters commenced. I'erris was a commission merchant in New-1 orle, and Walsh acted in the same capacity in Baltimore, in October 1815, Walsh was indebted to Ferris for a quantity of cheese sold by him on account of Ferris, and in January 1816, Ferris sold for Walsh four hogsheads of tobacco, to Messrs. J. and J. P. Foote, on a credit of four months. There being unliquidated accounts between the parties, and the note given by Messrs. Foote not having arrived at maturity, on the fifth of March 1816 Walsh addressed a letter, to Ferris, in which he expresses a desire to realize the balance due him in the hands of Ferris, and to obtain a guarantee of the payment of' the money still due from the Messrs. Foote. He begs Ferns to state upon what terms he will guarantee the proceeds of his’tobacco, and concludes by requesting,' if Ferris will guarantee the debt, lie will say upon what terms, and for. what amount Walsh might draw, if those terms were accepted by him. On the 12th of March following, an a’nswer is sent by Ferris to this letter, in which he states the balance due to Walsh to be gll8 S9, and authorises him to draw for the amount due, after deducting the interest from the probable time he. might pay it, with nine per cent exchange on the sum of g25, that Walsh had advanced for him; although F'ems does not mention the subject of guarantee, he assents to the proposition contained in Walsh’s letter, states the terms on which he did assent to them, and directs Walsh to draw for the balance, after deducting the interest and exchange; thus affording the specific evidence required by Walsh, if the proposition made by him should be accepted by Ferris. ’the terms of the contract being tlnis understood by both parties, Walsh, on the 16th of March, drew a bill of exchange on Ferris for §116, the amount due him after deducting the interest and exchange, as stated ip. the lettes. of Ferns, and Ferns honoured the bill. The guarantee or Foote’s debt constituted an essential part of the proposed, contract in Walsh’s letter, it was assented to by Ferris, and the payment of the bill of exchange consummated the contract. The court are therefore of opinion, that the. construction given to those letters by the court below is. correct, and their judgment is affirmed.

Cuase, Ch. J. dissented.

judgment ajtirmed.  