Tift v. Harden , 22 Ga. 623 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

All that Tift did, was to countersign the first of the two letters written by Hunt to Harden. V

The question therefore, is, whether this act of Tift’s made him liable to Harden, for the price of the musical instruments purchased by Harden for Hunt.

What then did this act of Tift’s amount to?

It amounted to an assurance by Tift to Harden, that the statements contained in the letter were true. It did not amount to an assurance by Tift tp Harden, that Hunt was a person fit to be credited for the price of the musical instruments, and to a request by Tift to Harden, that Harden would credit Hunt for that price. Therefore it did not amount to a guaranty on the part of Tift — a guaranty of that price. Indeed it- was not treated in the declaration as a guaranty. Indeed the act did not amount even to so much, as an assurance, that Hunt was a person fit to be credited for the price of the musical instruments. Nor was there the least need that it should have amounted'to such an assurance: Hunt had the money, with which to pay for the instruments. Hunt did not ask for credit: he asked ion information: he asked Harden to find out the lowest price at which the musical instruments could be purchased, and to communicate that price when found out, to him.

And, perhaps it is equally true, that the act cannot, fairly construed, be made to amount to an assurance, that Hunt was a person that could be depended on to make a faithful application of the money that had been put into his hands to be used in the purchase of musical instruments ? Is there any thing in the letter from which Harden would have had the right to infer, that either Hunt or Tift expected, or supposed, that the musical instruments would be sent to Hunt, before Hunt sent the money, with which to pay for them, to Harden, or to the house having them for sale ? It can hardly be said that there is, and if there is not, then there is nothing in the letter from which Harden might infer-an assurance on the part of Tift, that Hunt was a person who might be depended on to make a faithful application of the money put into his hands, to be applied in payment for musical instruments.

But even if the act may, fairly, construed, be made to amount to such an assurance as this, yet the act can be of no avail to Harden as the case stands: the declaration does not contain any allegation, that Tift knew that Hunt was not a man who could be so depended on.

The result is, that this act of Tift’s no more amounts to a deceit, than it does to a guaranty. Slade vs. Little, 20. Ga. 371; Bennet vs. Terrill, Id. 83; Stanley’s Ex’or s vs. Jackson, 19. Ga.

But unless the act was such that it amounted to a deceit, or to a guaranty, it could not give a right of action to Harden against Tift. And unless it could do this, evidence of it could not be admissible in support of an action by Harden against Tift.

This being so, the Court below erred in admitting the letter; or at least, the verdict was contrary to law and evidence. Therefore, either way, the Court below erred in not granting a new trial.

There ought to be a new trial.