#### Brayton *v.*Dnnne.

In an action of assumpsit upon a written contract of indemnity, to indemnify the plaintiff against his liability as an endorser on a promissory note, it appeared, by the instrument, dated Oct. 6, 1878, that the contract referred to the plaintiff “ having endorsed a note in favor of E. W. Scott & Co.” The plaintiff offered in evidence, as the note referred to, one dated Oct. 7, 1878, in favor of the plaintiff, and endorsed by him. The defendant contended that the contract referred to another note. The court refused to charge that if the jury believed that the note of Oct. 7, 1878, and the contractof Oct 6,1878, were given in renewal of a prior note and similar contract, dated July 8, 1878, or about that date, between the same parties, then they constitute one and the same transaction, and the plaintiff having paid the note of Oct. 7, 1878, and, not having been repaid, he is entitled to recover on the contract of Oct. 6, 1878 ; but left it to the jury to determine whether the note in evidence was the note intended by the contract. *Held,*after verdict and judgment for defendant, that the judgment should be affirmed.

In such case, the charge of the court, to the following effect, was held not to be error : “A note in favor of E. W. Scott & Co. means, in legal contemplation, a note drawn in favor of E. W. Scott & Co. I do not see that plaintiff’s evidence bears out his case that the note in evidence is the one referred to in the guarantee.”

Jan. 14, 1889.

Error, No. 355, Jan. T. 1889, to C. P. No. 3, Phila. Co., to review a judgment on a verdict in favor of the defendant in an action of assumpsit, by A. P. Brayton against J. J. Dunne, at Dec. T. 1884, No. 100.

The plaintiff’s declaration averred that on Oct. 6, 1878, “ in consideration that the plaintiff, at the request of the defendant, would endorse a note of S. O. Brown, for $2,000, at ninety days, in favor of E. W. Scott & Co., he, the defendant, promised the plaintiff to assume all liabilities that might attach to said plaintiff by reason of said endorsement. And the plaintiff avers that he, confiding in the promise of said defendant, did afterwards, to wit, on the day and year aforesaid, endorse the said note; and although the said note has long since become due, and the plaintiff has been compelled to pay said note, with interest, at the rate of one per cent, per month and costs of protest, yet the plaintiff has not been repaid or reimbursed by any one the amount of money so paid by him by reason of his said endorsement: Of all which premises the defendant had notice.” The plea was non assumpsit.

The contract of indemnity offered in evidence, was as follows :

“San Francisco, Oct. 6, 1878.

“ A. P. Brayton having endorsed a note of S. O. Brown, due for $2000 at ninety days in favor of E. W. Scott & Co., I hereby undertake to assume all liabilities that may attach to the said A. P. Bray-ton. “ J. J. Dunne."

*95The plaintiff offered in evidence, as the note referred to in the above contract, the following promissory note:

“ *$2000.*San Francisco, Oct. 7, 1878.

“On the 7th day of January, 1879, without grace, I promise to pay to the order of A. P. Brayton, Two Thousand Dollars with interest at the rate of one per cent, per month from date until paid. Principal and interest payable only in United States gold coin for value received. “ S. O. Brown.”

Endorsed “ A. P. Brayton; J. J. Dunne.”

Brayton testified as follows :

“ The note (in suit) was brought to me at my office by J. J. Dunne, who requested me to endorse it for his (J. J. Dunne’s) accommodation, for the purpose of renewing a. note 'for the same amount made by the same parties and discounted by E. W. Scott & Co., dated July 8th, 1878, and payable ninety days after date, and which note had also been endorsed by me for the accommodation of Dunne. After I had endorsed the note, it was delivered by me to Dunne and by him taken away. I refer to the note now before me, dated October 7th, 1878.

“ The paper now shown me, signed by Dunne and dated October 6th, 1878, was brought to my office by said Dunne at the same time he brought the note. It was executed by said Dunne and delivered by him to me in pursuance of a verbal agreement on his part to indemnify me from and against any loss by reason of my endorsing said note. Dunne was a friend of Brown and undertook to get some money he needed, and my endorsement was given on said note at the request of Dunne to enable him to get the required money.”

E. W. Scott, a witness for plaintiff, who discounted the note, said: “ Dunne brought the note to me, signed by all the parties to it; the note was delivered by Dunne to me in renewal of a note which I then held for the same amount and signed by the same parties.” The defendant testified, inter alia, as follows :

“ This agreement was signed 6th of October. The note there-spoken of is not this note. It had no bearing on this note. That note was drawn in favor of E. W. Scott & Co. Guarantee applies to note of October 6th to E. W. Scott & Co. I and Brayton endorsed that note. Brayton was the first endorser on the.first note. I never saw that note afterwards. Neither note has ever been paid. I know nothing of that note of October 7th, 1878. It was in the same transaction, and replaced the note of October 6th, 1878. I wrote to Mr. Brayton when the note was due in reply to his letter to me saying he had paid the note.”

Under plaintiff’s commission addressed to A. P. Brayton, the ninth cross-interrogatory was as follows:

“ Did not the said- S. O. Brown execute and deliver a certain mortgage upon certain property near Grass Valley and Nevada City Road, in Nevada county, state of California, and bearing date Octo*96ber ioth, 1878, and recorded in said county and state in Book No. 15 of Mortgages, page 617, &c., to said A. P. Brayton and J. J. Dunne, to secure the payment of said note with interest, and was not that mortgage received, held and controlled by the said A. P. Brayton? If aye, what did he do with it?” Objected to, objection overruled and exception. [1]

The second additional interrogatory, addressed to S. O. Brown, was as follows:

“ If you ever gave any mortgage to A. P. Brayton upon any of your property at any time, state fully who were the parties thereto, what property it covered, and for what purpose it was executed and delivered, and when and to whom it was delivered.” Objected to, objection overruled and exception. [2]

The plaintiff submitted the following point:

“If the jury believe that the note of October 7th, 1878, and the contract dated October 6th, 1878, were given in renewal of a prior note and similar contract, dated July 8th, 1878, or about that date, between the same parties, then they constitute one and the same transaction, and the plaintiff, having paid the said note of October 7th, 1878, and not having been repaid by said defendant, he (the plaintiff) is entitled to recover from the defendant upon said contract of October 6th, 1878. *Ans.*Refused.” [6]

The Court charged as follows :

“This suit is brought upon a contract to indemnify the plaintiff against his liability upon a note, and it is proved that the plaintiff was obliged to pay the note.

“ The plaintiff’s testimony and his witnesses show one note and that the contract refers to that note. If it did refer to that note, and was so understood by the defendant, the plaintiff is entitled to recover.

“ The defense is that the contract referred to another note. If it did refer to another note, the defendant is not liable; and that is for you to determine, under the evidence.

“An examination of the papers may throw some light upon this. The guarantee is dated October 6th, 1878, and refers to a note of that date. The note in evidence is dated October 7th, 1878, and is in favor of the plaintiff. How could the guarantee have referred to a note dated the next day ? [The guarantee speaks of a note in favor of E. W. Scott & Co., and that means, in legal contemplation, a note drawn in favor of E. W. Scott & Co.] [3] [I do not see that plaintiff’s evidence bears out his case, that the note in evidence is the one referred to in the guarantee.] [4]

[ “ It comes to the simple question, Does the guarantee refer to the note in question ?] [5] And that I will leave to you as a question of fact. If, under the evidence, you believe there was no other note than the one in evidence, as contended by the plaintiff, and that the guarantee referred to that only, then your verdict should be in his favor. If, however, that was a separate and distinct note, and *97the guarantee was intended to refer to it alone, and there was no agreement that it should apply to or cover the note in evidence, your verdict should be for the defendant.”

The charge of the court was by Finletter, J.

Verdict and judgment for defendant.

*The assignments of error*specified, 1, 2, the rulings on the evidence, quoting the bill of exceptions, but not the answers ; 3-5, the portions of the charge within brackets, quoting them; and, 6, the answer to plaintiff’s point, quoting the point and answer;

*Wm. H.*Burnett, with him *Sheldon Potter,*for plaintiff in error.—

The charge of the court was misleading. The date of the note is neither mentioned nor implied in the contract of guarantee. The jury were further misled by the expression of the judge’s opinion that the plaintiff’s evidence did not bear out his case. They would naturally conclude that if an inspection of the papers was to decide the question, the evidence, outside of them, was of no importance; and, in view of the judge's statement, they would entirely disregard it.

The court was in error in its interpretation of the contract of guarantee. The phrase “ in favor of,” if it has any technical meaning, does not necessarily and only refer to the payee; it may also refer to an endorsee or holder.

The judge’s reading of the contract is incorrect further because the contract does not speak of a note “ drawn in favor of,” or “ to the order of,” or “payable to,” E. W. Scott & Co., but “A. P. Bray-ton having endorsed a note in favor of E. W. Scott & Co.” It was Brayton’s endorsement which made the note in favor of E. W. Scott & Co. As between Brayton and Dunne, and they are the only parties to the contract of Oct. 6, it was the former’s endorsement which made the note available for the intended purpose. Dunne was already liable to Scott & Co. on the note, and gave Brayton this indemnity to protect him also against his liability on this note to Scott & Co., so that, under a proper reading of this contract, it would strictly apply to the note in evidence. Under the alleged note, imported into this case by Dunne alone, to the order of E. W. Scott & Co., and endorsed “ A. P. Brayton,” “ J. J. Dunne,” there ■ would be no liability of Brayton to Scott & Co., and hence no necessity of a guarantee for his protection.

The oral testimony does not contradict the contract, but explains it.

*Frank M. Cody,*for defendant in error.

Parol evidence was not admissible to vary the written instrument. Fox *v.*Foster, 4 Pa. 119; Cummings *v.*Miles, 19 Pa. 287; Milner *v.*Worrall, 38 Pa. 376; Fisher *v.*Deibert, 54 Pa. 463; Thorne *v.*Warfflein, 100 Pa. 526; Quick *v.*Van Auken, 3 Penny. 469.

This contract was within the statute of frauds. Nugent *v.*Wolfe, hi Pa. 471. And although the agreement of the parties may *98be contained in several papers, parol evidence is not admissible to connect them. DeColyar on Guarantee, 174; 2 Reed on Statute of Frauds, 454; Walker *v.*Carleton, 97 111. 589; Martin *v.*Duffy, 4 Phila. 75*;*Seidenbach *v.*Lippincott, 3 W. N. C. 448; 1 Smith’s Leading Cases, 519-22.

Jan 14, 1889.

The trial judge was warranted from the evidence in charging as he did. He could, with propriety, have gone further and commented strongly against plaintiff’s claim.

The answer to both of the interrogatories failed to show that anything was realized upon the mortgage, and this being so, they dropped from the case as of no importance.

Per Curiam,

Judgment affirmed.