The defence, which the pleader had in view, if true in fact, would bar the action. At the common law, a general denial would put in issue the legal effect of the con*216tract; and the circumstances under which it was made would be admissible to explain its meaning. Perhaps, under the Code, the defendant might have denied this contract, as it is stated in the complaint; but being required to swear to his answer, and not being able to deny the words of the contract, as there stated, he has adopted the more prudent course of setting out the facts, which show that the plaintiff has misconstrued it. If the jury should find the fact to be true, that the two houses were one firm, or that the defendant had a right to treat them as one, they would conclude that no such agreement, in legal effect, was made; for one would not take a guaranty that he would pay to himself a sum of money. But to authorize the jury to find that suoh a contract was not made, there must be a denial of it in the answer. The averments in this answer do not amount to such denial, for the agreement may have been what the defendant says, and as much more as the plaintiff claims.
The defendant, after stating the facts, ought to have averred, in substance, that he made the written agreement in order to indemnify Adams & Co. from loss by over-payment of the bill, and not otherwise.
The demurrer is sustained, and the cause remanded, with leave to amend the answer.