BURNS v. SEMMES, 4 F. Cas. 787

THE COURT (THRUSTON, Circuit Judge, contra), at the, prayer of the defendant’s counsel, instructed the jury that the plaintiff cannot recover in this case, unless he satisfies the jury by evidence, that the plaintiff gave notice to the defendant, in a reasonable time, of his acceptance of the guaranty, and of the value of the clothes furnished. Mr. Bradley, for the plaintiff, then prayed the court to instruct the jury, in effect, that if they should be satisfied by the evidence, that the goods were originally furnished to Mr.

Tolson, upon the credit and at the request of the defendant, it is an original undertaking by the defendant, under the count for goods sold and delivered by the plaintiff to the defendant at his request But THE COURT (CRANCH, Chief Judge, doubting) refused to give .this instruction, because there was no evidence of any contract between the plaintiff and the defendant, other than the letter of guaranty. Mr.

Bradley then prayed the court to instruct the jury, in effect, that if the defendant was, at the time of giving the letter of guaranty, indebted to Tolson in a larger sum than the value of the clothes, and that it was agreed between them that Tolson should give the defendant credit in their account, for the value of the clothes, and that credit was so given, and that the account between Tolson and the defendant has been settled, the plaintiff may recover upon the count for money had and received. But the court refused to give the instruction.

Verdict for the plaintiff for $65, with interest from the first of May 1831. The defendant moved for a new trial on the ground that the verdict was against the evidence, and the instruction of the court upon the point of want of notice. But the court overruled the motion.