In the letter addressed by Gordon to the plaintiffs, he did not bind himself as surety of the Oxnards for the debt they were about to contract, with all its incidents and accessories. He only made himself responsible for the due consignment by Messrs! Oxnard to plaintiffs’ house at Richmond, between 4th March, 1848, and July 31, of that year, of sugars to the full and fair value of $30,000. The letter is entirely silent as to the charge of commissions for advancing and exchange and to hold the surety for those charges, in addition to the $30,000, would be to hold him beyond the specific subject-matters and amounts for which he undertook responsibility. If the Oxnards had shipped to plaintiffs’ address, prior, to 1st August, sugars to the full and fair value of $30,000, or if Gordon had done it in their stead, his suretyship would have been fulfilled. Such shipments would have put the plaintiffs in possession of property of the value of $30,000. This not having been done, that amount is the measure of Gordon's liability, and may be considered as due by him on 1st August, 1848.
The guarantee being silent as to interest, we think interest should run against Gordon only at five per cent. It is true that Gordon was subsequently party to a written agreement by which the Oxna/rds agreed for eight per cent, interest ; but the terms of that instrument seems to us stringently to exclude any implication of an intention to enlarge the suretyship. It was expressly declared that the responsibility should be left precisely such as resulted from the letter of guarantee, and Gordon's estate should not be answerable for any amount in principal, interest, commission and exchange, for which it was not already answerable under the letter.
Under the various agreements respecting the purchase, at the judicial sale of the mortgaged property, its administrations, and resale, it is clear the plaintiffs must have credit for all antecedent incumbrances paid off by them, and for all disbursements necessarily made for expenses of administration and resale. The principal sums for these items are correctly stated in the accounts annexed to the petition.
The account, which is confessedly correct as to the Oxna/rds, must be reformed as to defendants, by excluding the charges for exchange and commission on the advance of $30,000, and reducing interest on that sum from eight to five per cent., to run from 1st August, 1848.
We think the plaintiffs are entitled to charge in account five per cent interest upon the amount of principal and interest of the Howell notes paid by them ; this five per cent, interest to run from the date of payment by plaintiffs of said notes respectively. In paying those notes under the agreements, they may be considered as having acted as the mandataries of the defendants. We cannot allow eight per cent, interest on the sums thus advanced, as there was no express agreement between plaintiffs and defendants to that effect.
*247Interest should also be charged only at five per cent, on the amount paid to the Citizens’Bank and Berthoud from the dates of the respective payments, and on the other items of disbursement.
The item for fees paid to counsel appears to have been an expense incurred in the administration of the property and its resale under the agreement, and was properly chargeable in the accounts. The reasonableness of the fee we do not understand as being disputed.
The defendants object to the charge of eight per cent, discount on the four unmatured notes credited in the account. As there was no agreement allowing plaintiffs to discount them at that rate, they are to be credited as cash at the period of their maturity.
We are unable to perceive by what right the estate of Gordon can claim reimbursement for the amount paid Fgana. We understand it was for a mortgaged note which constituted an antecedent incumbrance on the plantation. The guarantor was responsible for any deficiency of the proceeds of the mortgaged property to meet the amount guaranteed, and cannot, therefore, be permitted to receive with one hand what he would have to pay back with the other.
An account stated with interest according to the principles above expressed, exhibits a balance on 1st April, 1854, in favor of plaintiffs for the sum of $2602 58-100.
It is therefore decreed, that the judgment of the District Court be reversed ; and it is further decreed, that the plaintiffs recover of the said Succession of Alexander Gordon, to be paid in due course of administration, the sum of $2602 58-100, with interest from 1st April, 1854, until paid, and costs in both courts.