
    Yater v. Judah.
    
      A. and B. executed a chattel mortgage to secure certain debts, owing by them jointly, to 0. Subsequently D., in consideration that C. would release certain of the mortgaged property, executed to him a written guaranty for the payment of the amount of his debt. Suit upon the guaranty.
    
      Eeld, that the guarantor was not liable for a private debt owing by A. to C., especially if such debt accrued after the date of the guaranty; but that the guaranty must be construed to embrace the mortgage debt only.
    
      Saturday, December 8.
    APPEAL from the Ripley Circuit Court.
   Wobdeh, J.

On December 22, 1851, B. W. Stewart and J. G. Gross, executed a chattel mortgage on certain lumber, to Judah, the plaintiff below, to secure the payment of certain debts therein specified. Afterward the defendant, Ydter, wrote to Judah, as follows, viz:

“ Versailles, June 25 1855.

Jonathan Judah, Esq. Dear Sir:

“It is a matter of some importance to J. 0. Gross, that that oak lumber should be sold soon, or it will be worthless. I would say, in order to accommodate you and Gross, that I have agreed to take a note on one D. A. Brooles. I know him. He is good, but very slow. If you will consent to let the lumber go, I will see that you are paid as soon as I shall be able to get that much money from Brooles / and should he not pay me in some three or four months, I will pay you myself the amount of your claim, provided it does not exceed one hundred dollars.

“ Respectfully, James L. Eater.”

Judah let the lumber go, and this suit is brought by him upon the guaranty, claiming $81 and 34 cents.

Trial by the Court. Finding and judgment for the plaintiff for $72 and 98 cents, a new trial, on the application of the defendant, being refused. Ydter appeals. The evidence is in the record, and from it we can not perceive on what ground the finding and judgment can be sustained.

In 1856, Judah made out a statement of his claims against Stewart and Gross, making the amount of his claims $234 'and 93 cents, giving them credit for a lumber account for $133 and 30 cents, and claiming a balance due him of $101 and 63 cents. Entering into the sum of $234 and 93 cents, thus made out, was an individual account against Gross, of $77 and 29 cents, which was not provided for in the mortgage, and which accrued subsequently thereto. The appellant insists that the individul account against Gross, which was not provided for in the mortgage, and which accrued subsequently to its execution, could not go to make up any part of the claim for which he is liable on his guaranty. We are of that opinion, more especially as the account accrued subsequently to the date of the guaranty. The natural interpretation of the guaranty, it seems to us, is, that the guarantor made himself liable only for the debts, to secure which the mortgage was given. It is clear, certainly, that he did not thereby make himself liable for debts to be thereafter contracted. We can not see how this account has any thing to do in the computation, unless there was some arrangement, which does not appear, by which it was to be applied in balancing the lumber account for which Stewart and Gross were credited.

But, passing by this question, and giving Judah the benefit of this account against Gross, we will examine how the claims stand.

The account, as made out, includes two judgments on the docket of a justice of the peace named Howell. These judgments are secured by the mortgage. In making up the account, these judgments are computed, including interest, after deducting a credit on one of $19, one at $31 and 64 cents, and the other at $29 and 61 cents, making a total of $61 and 25 cents.

W. S. Holman, for appellant.

G. Durbin and J. W. Gordon, for appellee. '

The justice who rendered these judgments swears, that in 1856 Stewart paid him $19 on one of them, which, he paid over to Judah, and that afterward Stewart paid the residue of both judgments to Judah. There is nothing in the record to throw any doubt over this testimony.

The defendant also gave in evidence a receipt from Judah to Gross, dated April, 1856, for $10. This receipt should certainly he allowed, if the defendant is charged with the individual account against Gross. Gross was not credited with this receipt in the account against him.

The account then stands thus:

Stewart and Gross, Dr., as per account of Judah, $231,93.

From which deduct credit for lumber, $133,30.

Receipt to Gross, $10,00.

Judgments which had been paid and erroneously included in JudaKs account,

$61,25.

$231,55.

Balance, 38cts.

Per Guriam.

The judgment is reversed, with costs. Cause remanded for a new trial.  