4 U.S. 133 (1793), Eddowes v. Niell

Citation:4 U.S. 133, 1 L.Ed. 772
Party Name:Eddowes et al. v. T. Niell.
Court:United States Supreme Court

Page 133

4 U.S. 133 (1793)

1 L.Ed. 772

Eddowes et al.


T. Niell.  

United States Supreme Court.

April Term, 1793


        THIS was an action on the case, for goods sold and delivered to William Niell, upon a special assumpsit by the defendant, Thomas Niell, to guarantee the payment of the price.  Pleas, 1st.  Non assumpsit, on which issue was joined; and, 2d.  The statute of limitations, to which, resident beyond seas, was replied, &c.

        The plaintiffs were British merchants, from whom William Niell, a trader inBaltimore, was accustomed to import goods.  On the 14th of January 1771, his brother, the defendant, wrote a letter to them, in which he said, 'that to strengthen his brother's credit, he would guarantee all his dealings with their house.'  Several shipments of goods were made both before, and after, the receipt of this letter; and William Niell continued to make payments on account, till the year 1775, when the revolutionary war began its agitations; and all commercial and amicable intercourse, between Great Britain and theUnited States, was suspended until the peace of 1783.  In the year 1784, the plaintiffs sent a power of attorney to collect the debts due to them here; their agent applied to William Niell who acknowledged the justice of the debt; but claimed an abatement of eight years interest, on account of the war; and a further credit upon giving his bond for the amount; which the agent refused.  In 1785, William Niell died, leaving the defendant his executor; to whom, in that character, the agent of the plaintiffs applied for payment; and he answered, by admitting the claim, and recommending a suit against the estate.  No demand, however, was made, on the ground of the defendant's guarantee, till about the time of commencing the present action, in January 1790.

Page 134

        On these general facts, the plaintiffs' counsel contended, 1st.  That the demand was fair and legal, founded upon an unequivocal letter of credit, applicable, in its terms and meaning, as well to shipments made before, as after, it was received.  2d.  That it was not necessary to render the letter binding on the defendant, that the plaintiffs should answer it; nor that they should give notice to him of a default, (as in the case of bills of exchange) at any period of the transaction.  3d. That there was no express waiver of the guarantee; and nothing can be implied, even in favour of a surety,...

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