
    John Taylor et al. v. Charles W. Wetmore et al.
    Where a letter of credit is addressed to a particular firm, no one else can relj on it as a guaranty.
    Where a bill of goods is taken upon the faith of a letter of credit, notice of it must be given at once to the guarantor.
    This is an action of assumpsit from the county of Portage.
    The declaration contains two special counts. In the first, it is averred that one C. D. Farrar, on November 26, 1836,. being desirous of purchasing a general assortment of goods in the city of Pittsburg, for a retail country store, on a credit, and being unknown to the business men of said city, applied to the defendants, Messrs. Wetmores, then doing business at Cuyahoga falls, in Portage county, for. a general letter of credit, directed to some one or more of their correspondents in the said city of Pittsburg, by means of which the said Farrar might be enabled to make his purchases ; and the said defendants upon such application, made and delivered to Mr. Farrar a letter of credit, or written guaranty, addressed to Messrs. A. I). McBride & Co., merchants, in Pitts-burg, in the words following:
    “ Cuyahoga .Falls, November 26, 1836.
    “ Messrs. A. D. McBride & Go.
    
    “Gentlemen: Mr. C. D. Farrar has concluded to purchase a few goods; we have that confidence in Mr. Farrar, that we will say that we will bo responsible to the amount of $2,000 for goods delivered him. We are truly,
    “ C. W. & S. ID. Wetmore.”
    And which said letter, the plaintiffs aver was taken by Mr. Farrar, and presented to Messrs. McBride & Co. at Pittsburg, who retained it, as security for themselves and such other merchants 491] *in the said city, as should, at that time, and on the faith of said guarranty, sell goods on a credit to the said Farrar.
    It is also averred that Mr. Farrar was unable to obtain a general assortment of goods from the house of the Messrs. McBrides, whose business was confined to that of grocers, and therefore he made application to the plaintiffs, upon the strength of the said guaranty, then in the hands of McBride & Go. referring the plaintiffs to the house of McBride & Co. and to the said guaranty; that the plaintiffs did in fact, call upon McBride & Co., examined the letter of credit, and being satisfied with their statements in regard to the responsibility of the defendants, and of the guaranty, in consideration thereof, sold and delivered to Mr. Farrar, upon a credit of six months, a bill of dry goods, amounting to $760.75; of all which the defendants had due and timely notice. The plaintiffs then aver that the credit has expired, and that Farrar has omitted to pay, etc.
    The second count states that on November 6, 1836, etc., in consideration that the plaintiffs at the special instance and request of the defendants, would sell to said Farrar, on credit, all such goods as said Farrar should have occasion for and require of said plaintiffs in their trade and business of wholesale dry-goods merchants, they, the defendants, undertook and promised to pay the plaintiffs therefor; this count then avers the sale and delivery of goods to the amount of $760.75, on a certain credit, agreed upon between the parties, that the- credit had expired, that Farrar had not paid, of which the defendants had notice; avers their liability, and breach in the non-payment.
    To this declaration the defendants filed their plea of the general issue.
    The testimony submitted on the part of the plaintiffs, proves: 1. The execution and delivery of this mercantile guaranty, as set forth in the first count of the declaration; and 2. That a few days after its date, it was handed to the firm of McBride & Company, who not being dealers in dry goods, the ^witness, who was [492 a partner of the last mentioned firm, went with Mr. Farrar to the plaintiffs, and the said guaranty was shown to Mr. Taylor, one of the plaintiffs; the witness stated to Mr. Taylor, that he had sold a bill of groceries on the strength of the letter, and Mr. Taylor then said he would sell a bill of goods on the strength of the same, and Mr. Farrar accordingly obtained the goods. The clerk and salesman of the plaintiffs prove the amount of the goods sold to be S760.75, and on a credit of six months.
    The evidence on the part of the defendants proves that Farrar was in business at Cuyahoga Falls from December, 1836, until April or May, 1837, when he transferred all his goods to the defendants, and closed his store. That he paid none of his debts in Pittsburg. That in September, 1837, the witness was present at a conversation between Taylor, one of the plaintiffs, and C. W. Wetmore, one of the defendants, in which the defendant asked Taylor, if he considered him responsible, either legally, morally, or honorably, for the goods Farrar had purchased of him. To which Taylor replied he did not, but that the defendants had more goods in their possession, received of Farrar, than they were holden to the house of McBride for; that the goods would amount to $500 or $700. To this the defendant replied ho did not know how that was; that there was also loft with them, by Farrar, notes and accounts to the amount of about $200, and what they could not make up out of them, must be made up out of the goods; and if there was any balance, so far as he was concerned, that should go to the plaintiffs.
    Burchard, for the plaintiffs,
    insisted that the letter of the defendants was a general letter of credit, authorizing any one to trust Farrar on their responsibility, and that the undertaking was absolute and unconditional, and therefore no notice was necessary. He cited McIver v. Richardson, 1 Maule & Selw. 557; Lawrason v. Mason, 3 Cranch, 492; Duval v. Trash, 12 Mass. 155; McClung v. Means, 4 Ohio, 196; Hargrave v. Smee, 19 Eng. Com. Law, 69. 493] *Otis & Turner, for the defendants, maintained that they could bo made responsible only to McBride & Co., to whom the letter was addressed, and that the plaintiffs ought to have notified the defendants that they had sold the goods to Farrar on the faith of their letter. Miller v. Stewart, 9 Wheat. 702 ; Bacon v. Chesney, 2 Eng. Com. Law, 352; Myers v. Edge, 7 Term, 254; Grant v. Naylor, 4 Cranch, 224; Robins v. Bingham, 4 Johns. 476; Walsh v. Bailie, 10 Johns. 180 ; Penoyer v. Watson, 16 Johns. 100 ; Combe v. Wolfe, 21 Eng. Com. Law, 253 ; Hunt v. Smith, 17 Wend. 179; Dobbin v. Bradley, 17 Wend. 422; Glyn v. Hestol, 4 Eng. Com. Law, 72; Pidcock v. Bishop, 10 Eng. Bom. Law, 197; McClung v. Means, 4 Ohio, 196; Lawson v. Mason, 3 Cranch, 492; Wright v. Johnson, 8 Wend. 512; Russel v. Clarke, 7 Cranch, 69 ; Adams v. Jones, 12 Pet. 207 ; Lee v. Dick, 10 Pet. 482 ; Edmonson v. Drake, 5 Pet. 624; Douglas v. Reynolds, 7 Pet. 113; Ludlow v. Simons, 2 Caines Cas. 1; Massy v. Rayner, 22 Pick. 223; Babcock v. Bryant, 12 Pick. 133; Adams v. Jones, 12 Pet. 213.
   Wood, J.

Under the averments in the declaration, and the testimony submitted, are the plaintiffs entitled to judgment? — and I may here remai'k, in the outset, in this case, that I know of no arbitrary rule applicable to actions founded upon mercantile guaranties, which creates obligations between the parties to which they have neither expressly, nor impliedly assented. In all actions founded in contract, the agreement as set forth must be proved, or the circumstances existing between the .parties must be such as to leave it clearly to be inferred. .In enforcing them, courts of justice, though they may sometimes be confined by technical rules, always endeavor to ascertain the understandings and intentions of the parties, and these are considered as the essence of their agreements in carrying them into execution. Mercantile guaranties are either general or special; though a single letter of credit may bear upon its face both of these distinctions. It may be general, as to the whole word, to whom the bearer may be accredited, and to *any portion of whom, at his own option, [494 he may make the guarantor a debtor, and special, as to the amount of the credit; or unlimited or general in the amount, and special as to the parties.

The first inquiry which arises here, is, whether the guaranty in question is not special as to persons. It is directed to the house of McBride & Co., in the city of Pittsburgh, and nothing upon its face evincing an intention to give Parrar credit, or to incur responsibility with any other house.

The counsel for the plaintiff here admit, that a surety can not be held beyond the terms of his engagement, but they insist that although it is addressed only to McBride & Co. as it does not say “ we will be responsible, to you,'’ it is a letter of credit to any otherj who will advance the goods. It seems to us, this reasoning is more ingenious than sound. The guaranty being addressed to A. D. McBride & Co., it is to them the defendants speak when they say, 11 we will be responsible to the amount of $2,000 ; ” and it contains no general terms, by which either Farrar, or the house of McBride, had the authority to transfer it to the plaintiffs, and they to make the defendants their guarantors, without their assent, express or implied.

But another question is made, which may as well be settled, though the want of a privity of contract is decisive cf this count in the declaration as appears upon its face. It is said by the defendants’ counsel, that had this guaranty been addressed to the plaintiffs, in order to fix the defendants’ liability, notice was necessary to be given to them by the plaintiffs that they bad acted on such guaranty and had delivered the goods. This is resisted by the counsel for the plaintiffs, who claim the guaranty to be a positive and original promise, and notice, therefore, unnecessary.

The language of the guaranty seems to us clearly to convey the meaning that if the house of McBride & Co., would sell goods to any amount not exceeding $2,000, the defendants would be responsible that the vendee, Farrar, should pay for them at such 495] time as he should agree to make payment, and if *he did not pay, they, the defendants, would. If this interpretation be right, the promise is clearly what may be termed collateral. Beckman v. Hale, 17 Johns. 141, is cited as an authority that notice is not necessary to entitle the plaintiffs to recover. The defendant wrote to the plaintiff, to whom others were indebted, that it would be hard for one'of them to pay, desired the plaintiff to show him some lenity, and then-says, “I will stand responsible, if you please.” Spencer, who gave the opinion of the court, says: It can not be pretended this was an absolute, unconditional, guaranty, and it was held that notice was necessary. Platt, Justice, dissented ; but .unless a dissenting opinion be the greater authority, this case does not help the plaintiffs. In 7 Cranch, 70, it is laid down as a general rule, in cases of guaranty, to be the duty of him who gives credit to another, upon the responsibility of a third person, immediately to give notice to the latter of the extent of his engagements. In 12 Pet. 207, the Supreme Court of the United States have declared, that upon a letter of credit, addressed to a particular person, or to persons generally, foi; a future credit, to be given to a party, in whose favor the guaranty is drawn, to charge the guarantor, notice is necessarily to be given to him, that the person giving the credit has acted upon the guaranty, and has given credit on the faith of it, and that this is no longer an open question.

This notice should be given immediately on closing the transaction, for such notice may be most material to the guarantor in relation to his dealings with him for whom he has volunteered his responsibility or credit. The cases to which reference has been made, are clearly decisive of the cause of action laid in this count upon the last point raised; for the evidence shows the guaranty was received by the plaintiffs, and the goods delivered early in November, and no notice is proved to the defendants until September following

As to the second count.

Here again is a guaranty for goods to be delivered on a future credit, and the same objection applies as to the want of proof of notice and privity of contract, and even if this, declaration ^contained the common counts, there is no proof to show [496 any balance of goods in the defendants’ hands, after their own •liabilities for Farrar were discharged, to render them liable on any express promise. There are no circumstances which would raise an implied one; but there is the express declaration of one of the plaintiffs' that he did not consider the defendants either legally, morally, or honorably obligated to pay Farrar’s liabilities to them. In no aspect of the case ate the plaintiffs entitled to judgment. Judgment for the defendants.  