Brewing Corporation of America v. Pioneer Distributing Co.

• Court: Tennessee Supreme Court
• Writing for the Court: GAILOR
• Citation: Brewing Corporation of America v. Pioneer Distributing Co., 194 Tenn. 588, 253 S.W.2d 761, 30 Beeler 588 (Tenn. 1952)
• Decision Date: 05 December 1952
• Parties: BREWING CORP. OF AMERICA v. PIONEER DISTRIBUTING CO. et al. 30 Beeler 588, 194 Tenn. 588, 253 S.W.2d 761

Page 761

253 S.W.2d 761

BREWING CORP. OF AMERICA v. PIONEER DISTRIBUTING CO. et al.

30 Beeler 588, 194 Tenn. 588, 253 S.W.2d 761

Supreme Court of Tennessee.

Dec. 5, 1952.

John Ross Scott and C. W. K. Meacham, Chattanooga, for complainant.

Harry Berke, Chattanooga, for defendants.

GAILOR, Justice.

In the Chancery Court of Hamilton County, the Brewing Corporation of America, an Ohio corporation, filed its bill against Pioneer Distributing Company, Inc., H. R. Maddux and Pat Wilcox, to collect an alleged indebtedness of $7,323.37, with interest. At the time the bill was filed, the Pioneer Distributing Company, Inc., was in liquidation, a general creditor's bill had been filed against it, but it had not surrendered its charter. The alleged liability of H. R. Maddux and Pat Wilcox was based upon a written contract of guaranty, which is exhibited with and made a part of the bill.

It appears from this contract that Pioneer Distributing Company was to be the distributor of beer manufactured by the Brewing Corporation of America, and the guaranty contract provided that the guarantors jointly, severally and unconditionally, guaranteed the payment to the Brewing Corporation, of all sums which, at any time, should be owing to the Brewing Corporation by the Pioneer Distributing Company on account of beer and other goods furnished. A pertinent term of the contract of guaranty is as follows:

'This shall be an open and continuing Guaranty and shall continue in full force and effect, notwithstanding any change in the form of such indebtedness or renewals and extensions granted by Brewing Corporation of America without obtaining my (our) consent thereto, until receipt by Brewing Corporation of America, its successors and assigns, of written notice of revocation from the undersigned sent by registered mail.' (Our emphasis.)

The Chancellor entered a decree for complainant and the present appeal is prosecuted by the defendant Pat Wilcox, only, so we are concerned here, only with his liability. He filed an answer to the bill and demanded a jury. In his answer, he undertook to raise the affirmative defense that he, by a subsequent oral understanding with officers of the Brewing Corporation, had been released from this contract of guaranty. Complainant met this answer with a motion to strike, which the Chancellor, with consent of all parties, treated as a demurrer, and sustained, holding that the alleged oral release as alleged in the answer, was insufficient as a matter of law. Thereafter, defendant Wilcox filed amended answers, in which he undertook to raise questions of waiver and estoppel, alleging waiver and estoppel to be a defense to his liability on the written contract of guaranty.

Again, the Chancellor sustained a motion to strike these affirmative defenses, held that defendant Wilcox was liable as a guarantor on the written contract of guaranty, and further held that the only remaining question was the amount of his liability, to ascertain which he ordered a reference, and permitted a discretionary appeal.

Complainant has made a motion to dismiss the appeal on the ground that the decree from which the appeal was undertaken, was not a final decree, and was not such a decree as warranted a discretionary appeal.

We find no merit in this contention. Code sec. 9038 defines the cases in Chancery Court in which the Chancellor may grant discretionary appeals. Such discretion of the Chancellor is limited to the cases specified; Mengle Box Co. v. Lauderdale County, 144 Tenn. 266, 230 S.W. 963. In the decree from which this appeal was taken, the Chancellor held that the defendant was liable as a matter of law on the contract of guaranty, and that the only open question was the amount of such liability, for which he ordered a reference. The decree was final on the question of defendant's liability. If the reference involves only the amount of liability, and no legal or equitable principle of liability, the allowance of the appeal is within the...