debtor. Another reason is one of legal policy, to encourage suretyships for the benefit of commerce, and the extension of credit, and at the same time to protect the sureties by every means consistent with morality. All the cases at law are consonant with this distinction. The aid of the courts of equity has been invoked in vain to effect a more enlarged construction of the undertaking of sureties. Besides, whatever was the undertaking of the defendant in the present case, the plaintiff considered the order contained in the letter of the 9th of January as completely abrogated by the letter of the 13th of February, after which date the principals step in, and the plaintiff acts under their orders, and corresponds with them only. By the last mentioned letter, the defendant promises to answer bills drawn on himself only, which was a new undertaking, on his part, under which he could not be liable for bills drawn on Taber & Son. Nor did the plaintiff give the defendant any notice of those bills being drawn, which omission would alone be sufficient to discharge him from his liability. Mr. D. B. Ogden, in reply, insisted, that though the surety could not be made responsible beyond the tenor of his engagement, he could not be discharged a Lord Arlington v. Merick, 2 Saund. 411. and Sergeant Williams' note, (5.) p. 415. Wright v. Russel, 3 Wils. 530. S. C. 2 W. Bl. 934. Myers v. Edge, 7 T. R. 254. Barker v. Parker, 1 T. R. 287. Ludlow v. Simond, 2 Caines' Cas. in Er. 1. Walsh v. Bailie, 10 Johns. Rep. 180. Russel v. Clark, 7 Cranch, 90. b Maxims in Equity, 71. Simpson v. Field, 2 Ch. Cas. 22. Rees v. Barrington, 2 Ves. jun. 540. 1818. Lanusse V. Barker. 1818. Lanusse V. Barker. Feb. 17th. by implication, still less by studied ambiguity of language and artifice of conduct. That the great fundamental principle, in the interpretation of contracts, is to carry into effect the intention of the parties, and that this principle was peculiarly applicable to commercial contracts. That where there is a doubt arising from the ambiguity of expressions, the acts of the parties may be resorted to as supplementary evidence of their intention. That even supposing there had been a revocation, or modification of the original contract, on the part of the defendant, he is still liable under his subsequent undertaking. No case can be found, where a mere attempt to recover of the principal will discharge the surety. All the authorities are the other way. The drawing the bills on Taber & Son was not a waiver of the defendant's liability. Nor was any notice to the defendant necessary, any more than on a bill of exchange, where the want of funds in the drawee's hands dispenses with the necessity of notice. So, in this case, the defendant having no funds in the hands of Taber & Son, notice to him would not have enabled him to get into his own hands the means of securing himself. Mr. Justice JOHNSON delivered the opinion of the court. This case comes up on a bill of exceptions. This charge of the judge was given pro forma, generally against the plaintiff, and the verdict conforms to it. There are many counts in the declaration, and if on any one of those counts the plaintiff was entitled to recover, the judgment below must be reversed. The first count is on a refusal to pay two sets of bills drawn on Taber & Son of Portland, payable in New-York. These bills were duly protested and returned, and the amount, with damages, refunded by the plaintiff. In defence to this count it is contended: That the undertaking of Barker, as expressed in his letter of the 9th of January, 1806, relates to a different transaction from that upon which this cotton was purchased; that this transaction originated in the letters of the 26th of January, or 24th of July, 1806, or of the 20th February, 1807, and in neither of those letters is the undertaking, on bills to be drawn on Taber & Son, reiterated: That the letters alluded to contain, in fact, an implied revocation of the undertaking in the letter of the 9th, of which the plaintiff was bound to take notice. To the correctness of these positions, this court cannot yield its assent. Nothing could be more inconsistent with that candour and good faith which ought to mark the transactions of mercantile men, than to favour the revocation of an explicit contract on the construction of a correspondence no where avowing that object. It was in the defendant's power to have revoked his assumption, contained in the letter of the 9th, at any time prior to its execution, but it was incumbent on him to have done so avowedly, and in language that could not be charged with equivocation. In this case, we discover nothing from which such an intention can fairly be inferred. The whole correspondence refers to the same subject, and has in view the same object. The expediting of the ship 1818. Lanusse V. Barker. Mac on freight, if freight could be obtained, and if not, to be filled up, (at least to the quantity of cotton here purchased,) on owners' account. This agency the plaintiff undertakes expressly on the credit of Barker, for a house, with whose credit, except on his introduction, he is unacquainted; and so far from restricting the order contained in the letter of the 9th, there is not one from the defendant, in the subsequent correspondence, that does not enlarge the order as to quantity, upon the contingency of the ship not getting freight. But, it is contended, although the original assumption may not have been revoked, it was not complied with, according to the terms in which it was expressed, and, therefore, was not binding to the defendant. And on this ground, so far as relates to the bills in this count, the court is of opinion, that the defence is supported on legal principles. The assumption is to guaranty bills, "drawn on Taber & Son, Portland, or me, at 60 days sight." These bills are drawn on Taber & Son, Portland, payable in New-York. Now, although we cannot see why an honourable discharge of his contract did not prompt the defendant to accept these bills for the honour of the drawer, when they were returned to New-York for non-acceptance, yet, as it is our duty to construe the contracts of individuals, and not to make them, we are of opinion, that these bills were not drawn in conformity to the assumption of the defendant. Merchants well understand the difference between drawing bills upon a specified place, and drawing them upon one place payable in another. We are not to inquire into the reasons which 1818. Lanusse V. Barker. Although the bills on Taber & Son were not drawn ac cording to the defendant's as sumption, this fect the plain could only af tiff's right to recover the damages paid by turn of the bills, but he to recover, on guaranty of It is, however, contended, that the election to him on the redraw in this form, was conclusive upon the plaintiff, had still a right and he could not afterwards resort to a draft upon the de- the original fendant himself. And this brings up the question upon the debt. the plaintiff's right to recover upon the second count. This count is on a refusal to pay a bill drawn on Barker himself, for the exact balance of the invoice of the cotton, after crediting the defendant with the bills that he had paid. This bill was not negotiated and returned, but drawn in favour of an agent of the plaintiff, and of course no damages are demanded on it. The plaintiff, election to by making his draw upon T. & Son in the first instance, clude himself from resorting The defence set up to this count, to wit, that the plaintiff, by making his election to draw upon Taber and Son, is thereby precluded from resorting to Barker, we think cannot be sustained. It is in vain did not prethat we look for any passage in the correspondence to the defenthat holds out this idea, nor is there any thing in the undertaking nature of the transaction that will sanction this court promise to furin attaching such a restriction to Barker's under- necessary taking. It was in effect a promise to furnish the venture funds necessary to carry into execution this adven dant, whose was in effect a nish the funds to carry the ad. execution. into |