delivered the opinion of. the court. Two questions are presented for the consideration of the court in this case:
1st. Whether it was the province of. the court, or of. the, jury, to decide on the liability of the plaintiff to pay the money, due from J. and J. P. Foote to the defendant?. And. 2d. If the construction- given to the contract, by the. court be correct?-.
Whether the plaintiff made a contract tp guarantee the. payment of the money due from Messrs. Foote, for the tobacco sold to them on account -,of Walsh, must depend, upon the letters and written evidence in the cause, and is a question of law, to be decided by the court, and not a fact to be submitted to the jury. ■ This doctrine is. too-well established, both by authority and universal practice, to admit of doubt. A similar 'question was decided in, the case of Macbeath against Haldirnand, in 1 Term. Rep. J80, where Lord Mansfield observes, “It was objected^ *309whether the defendant had made himself liable or not was a question which ought to have been left to the jury to decide. But there was no evidence which was proper for their consideration; for the evidence, consisting altogether of written documents and letters, which were not denied, the import of them was matter of law and not of fact. ”
To form an opinion upon the second question, a reference to some part of the testimony in the record will be necessary to show the situation of the parties at the time, their correspondence by letters commenced. I'erris was a commission merchant in New-1 orle, and Walsh acted in the same capacity in Baltimore, in October 1815, Walsh was indebted to Ferris for a quantity of cheese sold by him on account of Ferris, and in January 1816, Ferris sold for Walsh four hogsheads of tobacco, to Messrs. J. and J. P. Foote, on a credit of four months. There being unliquidated accounts between the parties, and the note given by Messrs. Foote not having arrived at maturity, on the fifth of March 1816 Walsh addressed a letter, to Ferris, in which he expresses a desire to realize the balance due him in the hands of Ferris, and to obtain a guarantee of the payment of' the money still due from the Messrs. Foote. He begs Ferns to state upon what terms he will guarantee the proceeds of his’tobacco, and concludes by requesting,' if Ferris will guarantee the debt, lie will say upon what terms, and for. what amount Walsh might draw, if those terms were accepted by him. On the 12th of March following, an a’nswer is sent by Ferris to this letter, in which he states the balance due to Walsh to be gll8 S9, and authorises him to draw for the amount due, after deducting the interest from the probable time he. might pay it, with nine per cent exchange on the sum of g25, that Walsh had advanced for him; although F'ems does not mention the subject of guarantee, he assents to the proposition contained in Walsh’s letter, states the terms on which he did assent to them, and directs Walsh to draw for the balance, after deducting the interest and exchange; thus affording the specific evidence required by Walsh, if the proposition made by him should be accepted by Ferris. ’the terms of the contract being tlnis understood by both parties, Walsh, on the 16th of March, drew a bill of exchange on Ferris for §116, the amount due him after deducting the interest and exchange, as stated ip. the lettes. *310of Ferns, and Ferns honoured the bill. The guarantee or Foote’s debt constituted an essential part of the proposed, contract in Walsh’s letter, it was assented to by Ferris, and the payment of the bill of exchange consummated the contract. The court are therefore of opinion, that the. construction given to those letters by the court below is. correct, and their judgment is affirmed.
Cuase, Ch. J. dissented.judgment ajtirmed.