John Catron

“ Lord, for the plaintiffs, said that the consideration was sufficient, as the defendant's son was a partner in the house whose prosperity was to be increased. 9 Cranch, 348; 6 Binney, 201; 15 Peters, 314.
In the guarantee there is no limitation of time or amount, as to the credit with Archias and Co. Why limit it to others and not to them? The defendant relied upon his supervision over the house, and his being able to revoke the credit whenever he might apprehend danger. ”

“ Reason is stronger in the case of a surety. He is a favourite of courts, and his contract is stricti juris. Where the terms are clear, they are not to be extended; where they are doubtful, the court will adopt the narrower sense, provided it be reasonable and probable. Pothier on Oblig. p. 2, c. 6, s. 4; Code Napoleon, tit. 14, c. 1, arts. 2011, 2015, p. 401; 7 Cranch, 90, never repealed; 7 Peters, 122, does not conflict with it, but adopts it. 1 Mason, 336, that the language should be strong to make a continuing guarantee; in case of doubt, construction in favour of surety ”

“ Lord Ellenborough treats them all as bonds given in appointments to office. These are common law instruments, and the recital is put in on purpose to explain. But not so with commercial contracts. There is no recital in a letter or conversation. In the bond cases there is a contradiction, but there is none here.
The jury could have inferred Bruen the son's partnership in Thorn's house. He was interested in 'the business.' What business? Bruen, from bankruptcy, had become worth 4000 in seven years. The defendant therefore wished to sustain his son. ”

“ Early in the year 1831, Thorn had credits furnished to him by Bell and Grant, upon houses in Trieste, Messina, Leghorn, and Marseilles. On the 23d February, 1831, he wrote to Bell and Grant, and among other things said, 'My friends in Marseilles might secure many consignments for me, if I could put them in a situation to make the necessary advances, and I therefore hope you will oblige me by opening the credit I ask for, and, if you require it, Mr. M. Bruen will give you his guarantee. ”

“ The evidence being closed in the court below, the counsel of the defendant prayed the court to instruct the jury, among other things, as matter of law, that the letter of guarantee; of April 23, 1831, was void, as not expressing a consideration; that the said letter of guarantee was confined to credits to be opened to the house of Archias and Co., or other houses with whom Thorn might deal at Marseilles, and therefore could not cover the advances upon the bills of exchange given in evidence. ”

“ Bell and Grant answered the letter, saying what they thought of it; but the charge of the court below was given upon only one of these two letters.
In 2 Campbell, 39, the recital in a bond did not limit the engagement, because it was a commercial transaction. In 1831, Bruen came forward voluntarily. Bell did not ask him nor inquire his motives. A guarantee always implies that the thing would not be done without it. If Bruen intended what we say, he would have used the very words he did. There is no ambiguity, and why construe it in? ”

“ Such guarantees are not the subject of technical criticism; they are not the work of lawyers, but merchants in the course of business, and are not to be judged by the strict rules of the common law. Being of a continuing character, they involve the highest expression of confidence. ”

“ On the 3d of December, 1834, Bell and Grant wrote to Thorn: 'We have now the pleasure of acknowledging the receipt of your much esteemed favour of the 31st October, in compliance with which we have immediately increased the credits already opened for your account with Messrs. Robert Anderson and Co., of Gibraltar, and Messrs. Archias and Co., of Marseilles, to the sum of 4000 each, and opened fresh ones of 2500, say two thousand five hundred pounds in favour of Messrs. Francia, Brothers and Co., of Gibraltar, to enable them to grant advances on consignments to you from thence and from Malaga. ”

“ In October, 1836 and 1837, plaintiffs made another arrangement with Thorn, opening credits for $50,000. In April, 1837, Thorn failed, and in June, 1837, Bell became embarrassed; and yet the defendant was not notified until 1839.
As to the letter of 23d April, its language must be limited by the recital and the circumstances. Sheph. 86. Courts habitually so limit instruments. 1 Domat, 248; 3 Ch. Cases, 101; Sheph. 76; Bac. Abr. title 'Fait;' 9 Mass. Rep. 235; Theobald on Surety, 66; 1 Law Lib. 39.
Condition, when larger than the recital, is limited by it. ”

“ It has been followed by many others: Liverpool Waterwork Co. v. Harpley, (6 East, 507;) Wardens, &c. v. Bostock, (2 Bos. and P. 175;) Leadley v. Evans, (2 Bingh. R. 32;) Pepin v. Cooper, (2 Barn. and A. 431,) are some of the principal cases affirming the rule. ”