Scott v. Myatt

GOLDTHWAITE, J. We must hold the writing which was the foundation of this action a direct undertaking on the part of the appellant. He engages to be “ good,” that is, responsible, to the appellees, “ for any little things Orr may stand in need of and under the decisions in Bates v. Starr, 6 Ala. 697, and Oliver v. Hire and LeBaron, 14 Ala. 590, the engagement was not a collateral, but a direct promise; and this being the case, no notice of acceptance, or demand of payment, was necessary. —Donley v. Camp, 22 Ala. 659; Matthews v. Christian, 12 S. & M. 595; Carson v. Hill, 1 Mc-Mullan 76; Whitney v. Groot, 24 Wend. 82. It is urged, however, that the nature of the transaction may be determined by the circumstances; and the evidence that the goods were charged to Orr, — that the acoount was settled with [494] him, — part paid in cash, and his note taken for the residue, show that it was a collateral engagement. We agree that these facts were proper to be looked to by the jury, for the purpose of ascertaining whether credit was given to Orr alone; for the reason, that if such was the case, no recovery could be had, the plaintiffs below not having acted upon the order ; and if they let the goods go without reference to it, and solely upon the credit of the party who received them, they would not be allowed, on his failure to pay, to look to an assurance which did not influence their acts. But the evidence tends to show, that the goods were sold upon the faith of the order ; and the ques • tion therefore is, whether the testimony first referred to can change the legal effeet of the writing, if acted on. We have found no case which goes thus far ; and it would be in conflict with all the rules of law, in relation to contradicting written instruments by parol evidence. There are many cases, where the promise was a verbal one, when the acts of the parties are admitted to explain ; and if equivocal expressions were used in a written undertaking, then it would be open to explanation. This was, in effect, the reasoning of Bayley, J., in Simpson v. Penton, 2 Cromp. & Mees. 430 ; but here, under the force of our own decisions, we are bound to construe the writing as an original undertaking; there is no ambiguity, and that being the case, the only inquiry is, has it been acted upon by the appellees 1 If they parted with the goods on the faith of it, it makes no difference to whom they were charged, as the rights of the parties must be determined by the writing; and the fact that it was treated by those to whom it was addressed as a collateral, instead of a direct undertaking, cannot change it into the former. It follows from what we have said, that the payment by Oir of a part in cash, and giving his note for the balance, did not affect the liability of the appellant for the amount remaining unpaid, unless the note was received in satisfaction of the balance due; and of this, the mere taking of the note was not sufficient evidence. —Abercrombie v. Mosely, 9 Port. 145; Muldon v. Whitlock, 1 Cowen 290; Edwards v. Deifendorf, 5 Barb. Sup. Ct. 398; Johnson v. Cleaves, 15 N. H. 332; Gordon v. Price, 10 Ired. 385. Neither do we think that the words can fairly be supposed to mean, that Orr was only to have such articles as he actually [495] stood in need of. We are not tied down to a strict and literal interpretation of instruments of this character, but must adopt the construction which, without forcing or doing violence to the language used, ascribes the most reasonable, probable and natural conduct to the parties, (Bell v. Bruen, 1 How. Sup. Ct. 169, 186); and it is not to be supposed, that when a man gives an order like this, the other party is bound to inquire, and ascertain with certainty, before he acts upon it, whether the person in whose favor it is given absolutely needs the goods. A just and reasonable construction of the terms of the order, in our opinion, would extend it to any articles of no great value, which would come under the denomination of necessaries for one in the condition of Orr ; and as the account included articles of clothing, a general charge that a recovery could not be had for the items of the account, would have been improper. The only remaining question is, whether the writing is continuing in its character. The words are, “ let the bearer, Mr. Orr, have any little things he may stand in need of, and I shall be good for the same.” It is limited in two particulars; and had the promisor intended to have confined it to such articles as Orr required at the time it was drawn or presented, he should have used words which would have expressed his intention more clearly. The rule is, that w'here the language is susceptible of two meanings, it should be taken most strongly against the guarantor, and in favor of the party who has parted with his property upon the faith of the interpretation most favorable to his rights. —2 How. Sup. Ct. 426, 450, and cases there cited. Here, as we have said, the accountability of the appellant is limited in two respects ; but there are no words of limitation as to the time it is to continue. The articles to be supplied are those which Orr “may stand in need of;” and the word “ may” can certainly as appropriately be referred to the future, as the present wants. Such, we think, would be the ordinary understanding, and upon any other construction it would be liable to mislead. We must, for these reasons, hold the order as continuing, until the account was closed, or the order revoked by the appellant. The judgment is affirmed.