Appeal
from Superior Court, New Hanover County; Whedbee, Judge.
Action
by the Standard Supply Company against S. H. Finch and
others. From the judgment, plaintiff appeals. Reversed, and
judgment ordered entered for plaintiff.
In an
action on a guaranty of a claim, evidence held to show that
at the instance and request of defendant there was actual
forbearance by plaintiff to sue the debtors.
Civil
action, heard on exceptions to report of referee at December
term, 1910, of the superior court of New Hanover county. On a
former appeal in this cause, reported in 147 N.C. 106, 60
S.E. 904, it appeared that plaintiff, having an account for
goods sold and delivered against S. H. Finch and W. R. Person
for the amount of $611.46, sought to charge the defendant J
E. Person, the present appellant, as guarantor for a portion
of said account. Issues were submitted to determine the
controversy, and verdict was returned in favor of plaintiffs
against S. H. Finch and W. R. Person for the entire amount
and against J. E. Person as guarantor for $451.75 of the
amount, and it seemed to appear otherwise in the record that
this was the portion of the account which accrued prior to
May 10, 1906. The correspondence on which the liability of J
E. Person was made to rest was set forth as follows
"Pikeville, N. C., May 3, 1906. Standard Supply Company
Wilmington, N. C.--Gentlemen: Yours of May 1st to hand. I pay
out the money Finch & Person have in my hands as they direct.
That is, all their drafts & checks are sent to the bank at
Fremont and placed to my credit, and from that amount I pay
out as they direct. So, if they draw a draft on me and do not
have money enough to their credit to pay it, I do not pay
until they do have. This is an arrangement of recent date. I
have up to recently been paying their bills, regardless of
whether they had anything to their credit or not. I find
that, in order to make them more strict with their business
the responsibility of it must rest on their own shoulders
from now on. With this explanation I trust my refusal to
accept draft will be satisfactory to you. Respectfully, etc.
J. E. Person." Plaintiff in reply to said letter from J.
E. Person wrote to him the following letter: "May 4th,
1906, Dr. J. E. Person, Pikeville, N. C.--Dear Sir: Our
extension of credit to Finch and Person has been on the basis
of a letter received from you, in which you stated that you
were supporting this firm with your finances. We have
depended entirely upon your responsibility in making accounts
with them, knowing that you are perfectly responsible for any
amounts which they would probably make in their joint
interest. We shall have to ask you to reconsider your
determination not to accept a paper from these parties, as we
know nothing of their responsibility and should not have
credited them to the extent we have unless we had felt
authorized so to do from your letters. We would be glad to
have you say whether you will accept a paper from
them to sign and forward you, and which we are perfectly
willing to make on the basis of one-half and three months, if
you so desire, or whether you are unwilling to do this. Yours
very truly, Standard Supply Company." And in reply to
that letter received the following reply from J. E. Person:
"Magnolia, N. C., May 10, 1906. Standard Supply Company,
Wilmington, N. C.-- Gentlemen: Your letter of May 4th has
been received. I am here at the mill of Finch and Person to
see what progress they are making with their work. I find
that the dry-kiln is not completed and when it is, which will
be soon, I think you will get your money sooner than to sign
a paper or papers for the time mentioned in your letter. Just
as soon as the dry-kiln gets in operation I will see that
your bill is paid. Respectfully, etc. J. E. Person."
Plaintiff in reply to above letter wrote J. E. Person the
following letter: "May 11, 1906. Dr. J. E. Person,
Fremont, N. C.--Dear Sir: Your letter of May 10th is before
us, and entirely satisfactory. We presumed that the
proposition to make a paper would probably be a greater
accommodation to Messrs. Finch and Person than to wait on
them for an early settlement; but it would appear from your
letter that your preference which we presume is also theirs,
is to have this paid in the ordinary way and after a short
period. Thanking you for your kindness in this matter, we
are, Yours very truly, Standard Supply Company." And J.
E. Burr, president of plaintiff corporation, testifying for
plaintiff on the former trial, after saying that the letters
in question were written by J. E. Person, the alleged
guarantor, stated further: "The account was allowed to
run on the strength of Dr. Person's letter of May 10,
1906." The case on the last appeal made out by counsel
then states that the court charged the jury "on the
evidence, if believed, the defendants Finch and Person were
liable for the full amount demanded, and on the second issue
as to J. E. Person the amount due was $451.75, being the
amount due on said account after the letter of J. E. Person
was written on May 10, 1906."
On the
facts in evidence this court held there was error, saying
"The defendant J. E. Person is not liable for the former
portion of the account (that before the letter of May 10,
1906) for the lack of any valuable consideration for his
promise [citing ...
