tion of obligations which such a course of business would imply, is so unusual as to justify the requirement that if such an authority was intended to be conferred it should have been expressed in clear and unequivocal language.

It is obvious that neither Feigelstock nor Kaufmann & Blun could have derived any benefit or advantage from the discount, of bills whose proceeds were, as appears from the face of the transaction, intended for the sole use of Bingham Bros.

Even if the relation of consignor and consignee existed between Bingham Bros. and Feigelstock, we do not think the usual course of business between such parties justifies the assumption that the use of accommodation paper for either limited or unlimited amounts is the necessary or usual accompaniment of such a connection. On the other hand, if we consider this letter as intended to furnish a credit to Feigelstock with the manufacturers and consignors of property in which he dealt, it would satisfy the apparent object of the letter, and the transactions would assume a natural and reasonable character such as pertains to the ordinary and usual course of business among commercial men.

There would necessarily be a limit to such a course of business, and the liability of the defendants would be modified by the transfer of property to correspond with the amount of the obligation assumed, and creating a liability which might be safely and reasonably incurred. Of course, if the defendants have signed a guaranty, either general or special, upon a sufficient consideration, by which they have unqualifiedly promised to become liable for the payment of all such drafts as Bingham Bros. might thereafter draw on Feigelstock, their liability, however comprehensive, would not be affected by its imprudence. But such is not the contract under consideration.

We are therefore of the opinion, from the fact that the letter was addressed to Bingham Bros. alone, the absence of any allusion to its consideration or the negotiability of the drafts therein referred to, and a consideration of the situation and the relation of the parties, that the intention could not fairly be imputed to the defendants of making the guaranty contained in the letter general and open for acceptance by any one who might choose to comply with its terms.

We have been unable to find any case which either requires or authorizes the classification of this letter as a general guar

anty. In each of the numerous cases cited in which the instrument considered was held to be a general guaranty, it was either addressed generally or the guaranty contained inherent evidence that it was intended to be used in obtaining credit wherever it was needed.

In the case of Benedict v. Sheriff, Hill & Denio's Sup. 219, the letter was addressed to a clerk in favor of a country merchant visiting New York to purchase a supply of goods for his trade, and stated, "I will guarantee the payment of such debts as he may contract for the purchase of goods." It was held that this letter contemplated different purchases of different persons, and could not have been intended for the person addressed, as he had no goods to sell.

The case of Duval v. Trask, 12 Mass. 155, is like that last cited.

In Union Bank v. Coster, the letter was open and unaddressed, and expressly contemplated the negotiation of the drafts referred to therein by some bank for the benefit of the persons having possession of the letter.

In Russell v. Wiggin, 2 Story, 213, the court said that an action could be maintained by a person advancing money upon "letter of credit written by persons who are to become the drawees of bills, drawn under it, promising to accept such bills when drawn, which letter, although addressed to the persons who are to be the drawers of the bills, is designed to be shown to any person or persons whatsoever. Here it is evident that stress is laid upon the character of the letter, as showing that it was designed for the persons advancing money upon the faith of the letter.

The case was that of a letter given by Wiggin to the master of a vessel sailing from Boston to India to establish a credit for him in England, and.bore inherent evidence that it was intended for third persons.

In Lonsdale v. Lafayette Bank of Cincinnati, 18 Ohio 126, the guaranty required the drafts to be accompanied by bills of lading of shipments to the address of the guarantors. Upon the shipment of the goods and the attaching of bills of lading to the drafts, a cause of action arose in favor of the promisee in the guaranty which could be lawfully assigned to a third party who could bring his action upon the assigned claim as we have

already stated. The case is not an authority upon the question as to whether the guaranty is general or special.

The case of Monroe v. Pilkington, 14 How. Pr. 250, is referred to as a strong case for the plaintiff, and does probably come nearer sustaining its position than any other cited. The case is a Special Term case, and the question arose on a demurrer to the complaint. The letter there under discussion. is plainly to be distinguished in material points from the one in the case at bar. It was from a firm residing in England to another in this country, and evidently referred to and intended to promote the business of selling at New York, exchanges upon Liverpool. The inference was drawn by the court from the letter and the course of business that it was intended to be exhibited to persons buying exchange upon Liverpool, and thus give the person addressed additional facilities to carry on the business of selling exchange.

In Lawrason v. Mason, 3 Cranch, 492, the letter, although addressed to the person for whom the guarantor offered to become security, was by its express terms intended for the person who should furnish on credit the property referred to in the letter, and could have no other office to perform.

On the other hand, it was said by Judge COMSTOCK, in Church v. Brown, supra, that "An undertaking by one person to be responsible for goods to be delivered to another is in effect a request to deliver the goods. It is in law no more and no less than a letter of credit, general and particular, according as it may or may not have a particular address."

The case of Birckhead v. Brown, not only on account of the reasoning by which it is supported, but because it is the decision of a court distinguished for learning and ability, is entitled to great weight, although some of the reasons urged in support of the judgment are no longer tenable, owing to the provisions of our Code and the principles adopted in later cases. Brown Brothers & Co., of New York, addressed a letter to W. & J. Brown & Co., of Liverpool, at the request of Smith & Town, stating that they desired "to open a credit for £10,000, say ten thousand pounds sterling uncovered at any one time, in favor of Mr. James Demarest, to be negotiated by him in Rio de Janeiro by drafts on you at sixty days sight." Demarest was the commercial agent of Smith & Town, and represented them at Rio de Janeiro. Upon

the faith of this letter Birckhead & Co. discounted drafts at the request of Demarest, and upon their non-payment by W. & J. Brown & Co., brought an action against the guarantors. BRONSON, J., delivering the opinion of the court, says: "These letters have been divided into two classes, general and special. They are general when addressed to any or all persons without naming any one in particular. They are special when addressed to a particular individual or firm." "When the letter is special, or in other words addressed to a particular individual, he alone has the right to act upon and acquire rights under it. If any one else attempts to accept and act upon the proposition contained in the letter, he comes in as a mere volunteer, and he cannot by thus thrusting himself forward create any legal obligation on the part of the writer.' This case was much more favorable for the plaintiff than the one at bar, for this letter seemed to contemplate the negotiation of the drafts at Rio de Janeiro with some third party.

The strictness with which parties assuming to act upon the faith of a guaranty have been held to its precise terms is illustrated in Barns v. Barrow, 61 N. Y. 39; s. c., 19 Am. Rep. 247, where it was decided that a guaranty running to a member of a firm for goods to be sold by him, did not inure to the benefit of the firm of which he was a member, although they delivered the goods described in the guaranty. See also the cases therein referred to.

We have thus seen that no cause of action accrued to the plaintiff upon the guaranty, for the reason that it is a special guaranty upon which the party addressed alone could act and acquire a cause of action. Some confusion has arisen in the consideration of this case from an omission to regard the ob vious distinction existing between a cause of action accruing to the plaintiff in his own right upon the discount by them of such drafts, and one arising in favor of Bingham Bros, either prior to or simultaneous with such discount, of which the plaintiff now seeks to avail itself as their equitable assignee. Different considerations are required to support these different contracts. The court below reversed the judgment entered upon the report of the referee in favor of the defendants upon the grounds stated in the opinion as follows: "In the view insisted upon by the respondent the letter of credit in question in this case was a special letter of promise to Bingham Bros.

In that view it was a valid contract, for it would be so read by the law as to supply the consideration so far as necessary under the former statute of frauds. 'If you will draw on him I will guaranty that any draft you may draw on Mr. A. Feigelstock of our city will be paid at maturity,' or it would be regarded an original promise under the case of Gates v. McKee, 13 N. Y. 235, and the defendants held to the established construction of such instruments."

The court here seems to imply that there are two grounds upon which the action could be maintained, viz.: Because the promise was an original as distinguished from a collateral one, and secondly, because a cause of action accrued to Bingham Bros. upon making the drafts in suit, and that cause of action passed to the plaintiff as their equitable assignee by the delivery of the letter to them, and their discount of the drafts. We do not think that either of these grounds can be sustained.

It is entirely immaterial whether this guaranty be regarded as an original or collateral contract. Both equally required a consideration to support them, and the distinction between them is important only as affected by the statute of frauds, a collateral contract to pay the debt of another being required by that statute to be in writing, while an original undertaking is valid even if made by parol. No question arises respecting the validity of this promise, except in regard to its want of consideration. If therefore we could call this an original undertaking, the promise having, as we have seen, been made to Bingham Bros. alone, it still lacks the indispensable requirement of a consideration to support it.

This consideration must be proved, and a presumption of its existence can no more be indulged in to support the action than the presumption of any other fact material to the existence of a cause of action. Commercial and business paper generally specifies a consideration upon its face, and a defense thereto on the ground of a want of consideration must be supported by affirmative proof of such fact, but when the paper itself does not state a consideration the omission must be supplied by affirmative proof on the part of the holder, or he cannot recover thereon. 1 Pars. Cont. 175. No consideration is referred to in this letter, and the drafts are the act of Bingham Bros. alone, and are evidence of no fact stated therein as against any one,