Curia, per
Sutherland, J.I think the judge erred in the construction of the letter, or agreement of the defendant, which is the foundation of this action. He charged the jury, that the true construction of that agreement was, if any one of the creditors of Richard W. Smith would agree to wait, and, in pursuance thereof, did wait for the payment of his debt, one year, he, the defendant, promised to pay the debt. Now it appears to me, from the terms of the letter, that the defendant contemplated an arrangement with the creditors of his brother at Salem, generally. He uses the plural noun, without adding the qualifying terms, or any of them; and the very nature and object of the undertaking seem to imply an expectation and understanding on the part of the defendant, that the creditors generally should assent to it. The motive of the defendant must have been, either to prevent his brother’s property, (if he had any,) from being sacrificed by his creditors, or to save him from arrest or imprisonment. Neither of these objects would be accomplished by the assent of a single creditor to the proposition. It appears from the testimony of Mr. Crary, that Richard W. Smithy the brother of the defendant, had just been admitted an attorney of this court: that the defendant had purchased a *671library for him, and was desirous of having hitn remove from Salem to Whitehall, for the purpose of establishing himself in business at that place. And it is to be inferred from the evidence, that the defendant apprehended that the creditors of his brother would not permit him to leave Salem, unless they had some security for their demands : or if they did, that he could not prosecute his profession, with any prospect of success, with these debts impending over him.
The intention of the defendant, therefore, as derived from the terms of his letter, is strongly corroborated by all the circumstances in the case. Admitting the letter to contain a binding promise on the part of the defendant to pay the debts of his brother, in one year, it is upon the condition that his brother can make an arrangement with all his creditors at Salem for a year’s indulgence.
Having instructed the jury as to the legal import of the contract, he further charged them, “ that if they were satisfied from the testimony, that the plaintiff had agreed to wait and delay payment of his debt, so that he had no right to sue Richard for his debt for one year, then they must find for the plaintiff.”
If the judge was right in the construction which he put upon the contract, then the legal proposition embraced in the succeeding part of the charge was undoubtedly correct, as an abstract proposition. But the objection to it is, that there is not a particle of evidence in the case, that the plaintiff ever did make any agreement with the defendant or his brother Richard, or any one in their behalf, to suspend the collection of his debt against Richard for a single hour. All the evidence on this point is contained in the testimony of Mr. Crary. He states that the plaintiff called on him, and asked him if the defendant had given any assurance that R. W. Smith's debts would be paid. That the witness then showed the letter as containing the assurance which had been given by him. That the plaintiff showed the witness a note against R. W. Smith. That no other agreement whatever was made between witness and the plaintiff, that the plaintiff should wait on R. W° *672Smith for his pay, than what might he inferred from the transaction stated. The plaintiff asked the witness if the letter would legally bind the defendant to pay the debts °f R- W. Smith; and the witness answered in the affirmative. He requested the witness to keep the letter, and appeared to be satisfied.
There is nothing in this, that amounts to an agreement of any sort. The plaintiff might, the next day, have put his demand in suit, without the violation of any legal or moral obligation on his part. The charge of the judge was calculated to mislead the jury. They had a right to infer from it, that in the opinion of the judge, the evidence in the case warranted the conclusion that the plaintiff had made such an agreement, or that the fact of abstaining from suing, was equivalent to an agreement not to sue.
It was clearly proved that there were other creditors of Richard besides the plaintiff, by some of whom he was sued. On these grounds, we are of opinion that the verdict ought to be set aside, and a new trial granted.
We have not thought it necessray to express any opinion upon the other points raised in the case, because, according to our construction of the defendant’s letter, it was, at most, a promise to pay the debts of Richard upon a certain condition, which the case shows conclusively never was complied with on the part of his creditors. Whether the defendant would have been bound to pay, if that condition had been complied with, it is of no importance to determine.
New' trial granted.