This case comes up on a writ of error from the circuit court of the United States for West Tennessee. It was a special action on the case, on a guarantee given by the plaintiff in error in favour of Nightingale and Dexter. The declaration is special, stating that the defendant in the court below, by his guarantee bearing date the 24th of September in the year 1832, directed and addressed to the plaintiffs below, requested them to accept the draft of Nightingale and Dexter for the amount of 2000 dollars, and thereby promised to guaranty the punctual payment of the same to that amount: and avers, that Nightingale and Dexter afterwards, on the 5th of October 1832, drew a bill on the plaintiffs below for 4250 dollars; and that, confiding in the promise of the defendant, they accepted the same, &c. The declaration contains a count alleging an agreement by the defendant to guaranty the payment of 2000 dollars, part of the 4250 dollars; with the necessary averments to charge the defendant with the payment of the 2000 dollars.
The defendant pleaded the general issue; and upon the trial of the cause, the plaintiff produced the following evidence:
'Memphis, September 24th, 1832.
'Messrs N. & J. Dick & Co.
'Gentlemen: Nightingale & Dexter, of Maury county, Tennessee, wish to draw on you at six or eight months date. You will please accept their draft for 2000 dollars, and I do hereby guaranty the punctual payment of it. Very respectfully your obedient servant.
'SAMUEL B. LEE.'
'Nashville, October 5th, 1832.
'Exchange for $4250 00.
'Six months after date of this first of exchange (second unpaid), pay to H. R. W. Hill, or order, 4250 dollars-cents, value received, and charge the same to account of yours, &c.,
'NIGHTINGALE & DEXTER.
'To N. & J. Dick & Co., New Orleans.'
The plaintiff also offered in evidence the following letter of the defendant, Samuel B. Lee; which letter was written upon the same sheet of paper with the guarantee, but on different parts of it.
'Memphis, September 24th 1832.
'Mr. P. B. Dexter.
'Dear Sir: Yours of the 15th inst. came to hand in due time. I was absent, or should have answered it sooner. I left Mount Pleasant sooner than I expected when I saw you last. I learned that my presence was wanted at Savannah, and put o p h. I had calculated to get along with business without having any thing to do with drawing bills or with the bank; but there is no cash in this quarter, and our bills at the east are falling due, and I have no other alternative but to draw for what funds I am compelled to have, and may, during the winter (should I go largely into the cotton market), wish to draw for a considerable amount. I have no objections to guaranty your bill, except it might affect my own operations. I, however, send a guarantee for 2000 dollars, which you can use if you choose. The balance, I have no doubt, your friend Mr Watson will do for you. I would cheerfully to the whole amount, but expect to do business with that house, and do not wish to be cramped in my own operations. Spun thread, also coarse homespun are in good demand. My compliments to Mrs and Miss Nightingale. Your friend,
'SAMUEL B. LEE.'
It was agreed by the counsel, that the bill of exchange and letter should go to the jury, and their effect, &c. be charged upon by the court. The plaintiff proved that N. & J. Dick & Co. accepted the above bill, upon the faith of the said guarantee, and that they had paid it, and gave notice to the defendant, that they looked to him for the money. The court charged the jury, that if the defendant intended to guaranty a bill of exchange to be drawn for 2000 dollars, he would not be liable for a bill drawn for upwards of 4000 dollars. But if he intended to guaranty 2000 dollars of a bill to be drawn for a larger amount, then he would be liable for the 2000 dollars. That the court was of opinion, that the letter accompanying the guarantee was admissible in evidence, to explain whether the guarantor meant to guaranty a bill for 2000 dollars, or only 2000 dollars in a bill for a larger amount. The court also charged the jury, that no notice, by N. & J. Dick & Co. to the defendant, that they intended to accept, or had accepted and acted upon this guarantee, was necessary. To which opinion of the court the defendant excepted.
1st, Whether this evidence will warrant the conclusion, that the defendant intended to guarantee 2000 dollars in a bill to be drawn for a larger sum.
2dly, Whether N. & J. Dick & Co. were bound to give notice to the defendant that they intended to accept, or had accepted and acted upon the guarantee.