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Grant

V.

Naylor.

* 233

When there is no ambiguity upon the face of the instrument, but an uncertainty arises from facts out of the instrument, (as where there are two persons of the same name and description,) there the ambiguity may be explained by parol testimony.

You may not by parol evidence vary, extend or curtail a written instrument, but you may explain it. 2 Vez. 216. Hampshire v. Pierce. Powell on Contracts,

431.

The case of Clarke and Russel was a case of patent ambiguity.

2. But we say this is not a case of latent or patent ambiguity, but of mistake, and there are many instances where a mistake may be corrected by parol. 3 T. R. The King v. The Inhabitants of Scammonden. 6 T. R. 671. Thomas v. Thomas. Powell on Contracts, 432. Cro. Car. 501. Nevison v. Whitney. 2 P. Wms. 141.

*CHASE, J. There was a case of Lord Baltimore's devise to his son Benjamin, when his name was Benedict. Benedict recovered in an ejectment, having proved himself to be the person meant.

Harper. The case from 10 Co. 124. is no authority. It is the opinion of one judge only, and the other appears to have been the better lawyer. And even in that case parol evidence must have been admitted to show that there was not another corporation of that

name.

There is a difference between proving that something was agreed which does not appear in the writing, and proving that it was agreed that something should be inserted in the written agreement which was omitted by mistake. 3 Wilson, 275. Meres v. Ansel. This was a mistake of Travis, the agent. It was agreed that the guaranty should be by Grant to John and Jeremiah, but by mistake it was directed John and Joseph.

3. No averment was necessary in the declaration that John and Jeremiah were the persons meant, because it was not necessary to set forth the written agreement in the declaration.

4. There can be no doubt that the guaranty was general. By the yery terms of the letter the defendant

undertook to guaranty any engagements which Hackett & Grant should enter into for any transaction they might have with the plaintiffs.

5. No notice was necessary to inform the defendant The contract did

that a guaranty was necessary.

not require notice.

Martin, in reply.

Although the name of a firm sometimes continues after some of the original partners are dead, yet when they sue they must declare that A., B. and C., trading under the name and firm of D., E. and F., &c.

So in this case, if the fact would justify them, the plaintiffs might have declared that the defendant promised *the plaintiffs, trading under the name and firm of John and Joseph Naylor & Co.

The plaintiffs are bound to name all the persons entitled to be joined as plaintiffs, at their peril.

The action cannot be supported by any acts done by the plaintiffs. There can be no assumpsit in law. The whole contract arises from the letter. Its legal import must appear upon the face of it.

We offer no parol evidence to create an ambiguity, and there is none on the face of the instrument. The variance is apparent upon comparing the evidence with the declaration.

It is true that equity will interpose in some cases of mistake, where it was agreed that something should be inserted in the writing, which was not done, and the writing was drawn by the other party; or where there is any thing omitted through fraud, one party being illiterate, &c. But here the plaintiffs were not bound to part with their goods upon such a letter; it was their own folly to do it. They made no mistake.

March 29.

MARSHALL, Ch. J. delivered the opinion of the court, as follows:

In this case three points are made by the plaintiff in error on the letter which constitutes the basis of this action. He contends,

1st. That this letter being a collateral undertaking, and being addressed to John and Joseph Naylor & Co. the plaintiffs below cannot be admitted to prove by pa

Grant

V

Naylor.

* 234

Grant

V.

Naylor.

235

* 236

rol testimony that it was intended for, and is, an assump sit to John and Jeremiah Naylor.

2d. That the undertaking was conditional, and required notice to be given to the writer of the intent and nature of his liability.

*3d. That it is confined to the shipments made during the year in which it was written.

On the first objection the court has felt considerable difficulty. That the letter was really designed for John and Jeremiah Naylor cannot be doubted, but the principles which require that a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and a wise policy, which this court cannot relax so far as to except from its operation cases within the principles.

Already have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best judges in England have been of opinion that this relaxing construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion.

On examining the cases which have been cited at the bar, it does not appear to the court that they authorize the explanation of the contract which is attempted in this case.

This is not a case of ambiguity.

It is not an ambiguity patent, for the face of the letter can excite no doubt.

It is not a latent ambiguity, for there are not two firms of the name of John and Joseph Naylor & Co. to either of which this letter might have been delivered.

It is not a case of fraud. And if it was, a court of chancery would probably be the tribunal which would, if any could, afford redress.

If it be a case of mistake, it is a mistake of the writer only, not of him by whom the goods were advanced, and who claims the benefit of the promise.

*Without reviewing all the cases which have been urged from the bar, it may be said with confidence that no one of them is a precedent for this.

A letter addressed by mistake, it is admitted, to one house, is delivered to another. It contains no application or promise to the company to which it is delivered, but contains an application and a promise to a different company not existing at that place. The company to which it is delivered are not imposed upon with respect to the address, but knowing that the letter was not directed to them, they trust the bearer, who came to make contracts, on his own account. In such a case the letter itself is not a written contract between Daniel Grant, the writer, and John and Jeremiah Naylor, the persons to whom it was delivered. To admit parol proof to make it such a contract, is going further than courts have ever gone, where the writing is itself the contract, not evidence of a contract, and where no preexisting obligation bound the party to enter into it.

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It being the opinion of a majority of the court that John and Jeremiah Naylor could not maintain their action on this letter, it becomes unnecessary to consider the other points which were made at the bar. It is the opinion of this court that the circuit court erred in directing the jury that the evidence given by the plaintiffs in that court was proper and sufficient to support the issue on their part. The judgment of the circuit court is, therefore, to be reversed, and the cause sent back for further trial.

Judgment reversed.

Grant

V.

Naylor.

*WOODS AND BEMIS v. YOUNG.

*237

ERROR to the circuit court of the district of Co- The refusal lumbia, sitting at Alexandria.

of the court below to con

The plaintiffs below, Woods & Bemis, took a bill of tinue a cause exceptions to the refusal of the court to continue the after it is at issue, cannot cause till next term, upon their motion grounded on an be assigned affidavit stating the absence of a witness, the facts which for error. they expected to prove by him, on a belief that he would prove those facts, (which appeared to be material to the issue,) that he resided in the state of Maryland, about 25

Woods

V.

Young.

*238

miles from the place of trial, had been summoned, and promised to attend; that the cause had been called at a former day for trial in the regular course of the docket, and was then postponed at the request of the plaintiffs, on account of the absence of that witness; that the cause being now again called for trial, the witness was still absent, but it was expected that his attendance might be had at the next term.

The bill of exceptions stated a general rule of practice which had been made at a former term, and entered on the minutes of the court, and which was still in force, "that when a motion shall be made for the continuance of a cause for want of a witness, the affidavit must state the fact or facts which the party making the affidavit expects to prove by such witness, and that the said party verily believes that the said witness will prove such fact or facts, and that he the deponent has used all proper means to obtain the attendance of such witness, and that he believes he shall be able to procure the testimony of such witness at the next term, or in a reasonable time to be therein stated."

No motion had been made for an attachment against the witness, or any other process to compel his attend

ance.

*The case was submitted to the court without argument, by Swann, for the plaintiffs, and Youngs, for the defendant.

By the Court.

The question is, whether a refusal to continue a cause can be assigned for error.

Has

The impression of the court is, that it cannot. the party, by law, a right to a continuance in any case? If he has it will have weight. Is it not merely a matter of favour and discretion?

This is a case in which this court cannot look into the merits of the question, whether the court below ought to have granted a continuance of the cause.

Judgment affirmed, with costs.(a)

(a) This case was brought up in expectation that this court would have decided the question whether an attachment can be served upon a person who resides out of the district, but within 100 miles of the place of trial,

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