Bank of Slater v. Harigngton

• Decision Date: 01 December 1924
• Docket Number: No. 6513.,6513.
• Citation: 266 S.W. 496
• Parties: BANK OF SLATER v. HARRIGNTON
• Court: Missouri Court of Appeals

266 S.W. 496

BANK OF SLATER v. HARRIGNTON

No. 6513.

Kansas City Court of Appeals. Missouri.

December 1, 1924.

Appeal from Circuit Court, Platte County; Guy B. Park, Judge.

Action by the Bank of Slater against William R. Harrington. From a judgment for plaintiff, defendant appeals. Affirmed.

John A. Cross, of Lathrop, R. H. Musser, of Plattsburg, and A. D. Gresham, of Platte City, for appellant.

J. H. Hull, of Platte City, and W. S. Herndon, of Plattsburg, for respondent.

TRIMBLE, P. J.

Plaintiff sued upon a written guaranty executed by defendant dated February 27, 1913, addressed to the "Bank of Slater of Slater, Mo.," requesting it to give, and to continue to give, from time to time, credit to J. E. Harrington, called therein the borrower, and stating that in consideration of the bank doing so, and to enable the borrower to obtain such credit, the undersigned promised and agreed to make

"prompt payment, as they severally mature, of all overdrafts by the borrower, of all loans made or which may be made by you to the borrower, and of all acceptances and other paper which have been or may be by you discounted for the borrower, whether made, drawn, accepted, indorsed, or not indorsed by the borrower as well as any and all renewals thereof. This is intended to be a continuing promise and agreement and shall apply to and cover any and all such overdrafts, loans, discounts, and renewals made prior to notice in writing given to your cashier that the undersigned will not be liable upon any such overdrafts, loans or discounts made after the receipt of such notice. When any such overdrafts, loans or paper, or any renewal thereof, shall become and remain due and unpaid, the undersigned will, on demand pay the amount due thereon; provided, however, that liability herein shall not in the aggregate exceed $15,000."

J. E. Harrington, to whom the credit was to be extended, and for whom it was obtained, is the son of defendant, and at the date of the guaranty was a farmer and trader at Slater, and continued in that business, meeting all of his obligations to the bank, up to about the year 1920.

In the suit on this guaranty, the petition sets out, in as many counts, five notes as instances wherein a loan was made and credit extended to J. E. Harrington on the faith of such guaranty and which had not been paid. The first and second counts related to two notes, respectively, which were executed by J. E. Harrington and one C. H. Oster, but as the trial court sustained defendant's demurrers in these two counts and took them from the jury, they are no longer in the case. The third, fourth, and fifth counts related, respectively, to three notes, one dated July 6, 1920, for $5,000 (on which were credits amounting to $4,000), one dated October 8, 1920, for $345, and one dated January 16, 1922, for $647.33, all of them payable to plaintiff and signed by J. E. Harrington, all past due and unpaid, and on which demand had been made.

Defendant, in his answer, admitted the execution and delivery of said special guaranty, and that said J. E. Harrington did from time to time thereafter borrow money from plaintiff until on or about July 26, 1915, when defendant "notified plaintiff of his withdrawal from said guaranty," and of his desire to be released therefrom, and that said guarantor was on that date discharged and said guaranty was not thereafter revived. The answer further set up that the respective notes mentioned in the third, fourth, and fifth counts were for indebtedness "created after the plaintiff received notice from defendant of his withdrawal from said guaranty, and after the plaintiff without the consent or knowledge of defendant, altered the terms of said guaranty by agreeing to and extending its credit to C. H. Oster and J. E. Harrington, or to the firm of Oster & Harrington, copartners, and thereby released the defendant, W. R. Harrington, from any and all liability to plaintiff by reason of said guaranty."

The jury returned a verdict for plaintiff in the sum of $1,239.43 on the third count, $440.38 on the fourth count, and $748.48 on the fifth, aggregating $2,428.29, for which sums judgments were rendered, and defendant has appealed.

At the close of all the evidence in the entire case, including that of the defense, the defendant for the first time offered a demurrer to each of said counts. As stated, the court sustained the demurrers to the first and second counts but overruled the other three. It is of these that complaint is now made; and, of course, such demurrers must be adjudged in the light of all the evidence in the case giving to plaintiff the benefit of every reasonable inference which the jury could rightfully draw from all of the evidence in the case. Sherman v. United Rys. Co., 202 Mo. App. 39, 51, 214 S. W. 223; Schulz v. St. Louis, etc., Ry. Co. (Mo. App.) 223 S. W. 757.

It is no doubt well settled that the rights of a guarantor are strictissimi jurist and the contract of guaranty must be construed strictly...