Hutton v. Padgett

Bartol, J., delivered the opinion of this Court. This suit was instituted by the appellees, upon the following guaranty : “I hereby hold myself responsible to W. A. & W. W. Padgett, of Baltimore, Maryland, to the amount of $2,000, for any drafts they have accepted, or may hereafter accept, for John Latouche, now of Alexandria, Va.” “Witness my hand this 16th of May, 1860. “Jos. Hutton.” At the trial below, the plaintiffs, after proving the signature of Jos. Hutton to be that of the defendant, further proved that subsequent to the date of the paper, they accepted and paid drafts of said Latouche, drawn- on them, to the amount of $2,000, and then rested.

Whereupon the defendant, by his counsel, prayed the Court to instruct the jury : “That upon all the foregoing •evidence the plaintiffs were not entitled to recover, because no liability attached to the defendant by the instrument of writing or guaranty aforesaid, there being no sufficient consideration mentioned in said instrument of guaranty.” The Circuit Court refused to give this instruction to the jury; and the defendant excepted. The only question before us, therefore, on this appeal, arises upon the defendant’s prayer. In the argument in this Court the appellant’s counsel have presented two points : 1st. That the consideration of the guaranty does not sufficiently appear on the instrument to bind the defendant. 2nd.

That the defendant was entitled to notice of the •acceptance of the guaranty, and, also, of the amount of ²³¹ acceptances for Latoucho, and of his failure to meet his engagements. In support of this last position, several authorities have been cited ; but it is unnecessary for us to examine them, because we are not at liberty “to decide any point or question which does not appear by the record to have been raised or made in, and decided by, the Court below.’, Code, Art. 5, sec. 12. This being a guaranty, and not a mere overture or offer to guarantee, it is settled by the case of Caton vs. Shaw & Tiffany, 2 H. & G., 14 , that no notice of its acceptance was necessary. No question, however, of notice is raised by the prayer ; it presents but one proposition, which is that the guaranty is not binding, because the consideration does not appear on the face of the instrument.

And in reviewing the ruling of the Circuit Court, we must confine ourselves to the consideration of that proposition only. Ever since the case of Wain vs. Walters, 5 East., 10, the? law has been