Dodd v. W. T. Rawleigh Co.

• Decision Date: 19 April 1918
• Docket Number: (No. 841.)
• Parties: DODD et al. v. W. T. RAWLEIGH CO.
• Court: Texas Court of Appeals

203 S.W. 131

DODD et al. v. W. T. RAWLEIGH CO.

(No. 841.)

Court of Civil Appeals of Texas. El Paso.

April 19, 1918.

Rehearing Denied May 9, 1918.

Appeal from District Court, Coleman County; John W. Goodwin, Judge.

Action by the W. T. Rawleigh Company against L. E. Dodd and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Critz & Woodward, of Coleman, for appellants. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.

Findings of Fact.

HARPER, C. J.

March 21, 1913, the W. T. Rawleigh Medical Company and L. E. Dodd executed a writing providing in substance that the company agreed to sell to Dodd at wholesale prices a certain line of merchandise to be sold again on his own account. The writing contained the following stipulation:

"Therefore he [Dodd] agrees to have no other business or employment."

Under the above, upon the same paper was the following:

"In consideration of the W. T. Rawleigh Medical Company extending credit to the above-named person, we hereby guarantee to it jointly and severally the honest and faithful performance of the said contract by him, waiving acceptance to this guaranty and all notice, and agree that the written acknowledgment of his account or any judgment against said principal shall in every respect bind and be conclusive against the undersigned and that any extension of time shall not release us from liability under this guaranty, provided that release may be had from this guaranty at any time upon payment of the balance on account due from said principal to the W. T. Rawleigh Medical Company.

"(Responsible men sign below in ink or indelible pencil.)

                                           V. M. Skipwith
                                          "T. Narderke
                                          "W. T. Walton."
                

On October 24, 1913, a writing substantially the same in its provisions as the above was executed by the company and Dodd, except it did not contain the stipulation that Dodd should have no other business. Upon the same sheet of paper, the following obligation was written and executed:

"For and in consideration of the extension of further time in which to pay his account for goods previously sold to the above party of the second part, and in further consideration of the W. T. Rawleigh Medical Company extending further credit to him, we, the undersigned, do hereby jointly and severally guarantee unto said the W. T. Rawleigh Medical Company, unconditionally, first, the payment in full of the balance due said company on account as shown by its books at the date of the acceptance of this contract, and, second, the full and complete payment to said company of any and all indebtedness incurred under the terms of the within instrument by the party of the second part, named as such therein, to which terms we fully assent waiving acceptance of this guaranty and all notice, and agree that the written acknowledgment of his account, or any judgment against said party of the second part, shall in every respect bind and be conclusive against the undersigned, and that any extension of time shall not release us from liability under this guaranty.

"(Responsible men sign below in ink or indelible pencil.)

                                              Wm. Godwin
                                             "W. T. Walton"
                —indorsed on the back
                  "Accepted, January 31, 1914."
                

The company sold and delivered to Dodd goods to the value of $821.75 under the first contract, and $688.56 under the second. Dodd paid $320 prior to January 31, 1914, and $198.45 after the latter date. Appellees filed this suit against L. E. Dodd upon verified account for balance due of $991.86, for merchandise sold and delivered under these contracts, and against Wm. Godwin upon the written guaranty; the others being out of the state.

The cause was submitted to jury upon special issues, to which they made the findings: (1) That the plaintiff at the instance and request of defendant sold and delivered the goods to the latter. (2) That he agreed to pay the amounts specified, in the sum of $821.75 prior to December 31, 1913, and $688.56 after the latter date, and that Dodd had paid $320 prior to January, 1914, on said account, and $198.45 on it after the latter date. The court in its decree found that "goods to the amount of $688.56 were sold and delivered under the contract accepted January 31, 1914, upon which payments have been made to the amount of $198.15, leaving a balance due of $490.11," for which latter amount judgment was entered against L. E. Dodd, as principal, and Wm. Godwin, as surety, with 6 per cent. interest, from which Godwin and Dodd appealed.

First, it is urged that there is a misjoinder of parties and causes of action. There is good authority for the proposition that, where a guarantor is bound by a separate contract of absolute guaranty, he cannot be joined in the same suit with the principal. Brandt, Suretyship & Guaranty, § 2; Young v. Bank of Miami, 161 S. W. 438; Shropshire v. Smith, 37 S. W. 174; Id., 37 S. W. 479; Page v. White, S. W. Mac. Co., 34 S. W. 988. Is Godwin bound by a separate contract? The contract made the basis of this action is the one signed by both parties, is one and the same transaction, and we think constitutes a contract of suretyship, and not of guaranty.

"It being the general doctrine of our courts that the rights of all parties in the subject-matter of litigation and that all matters growing out of the same transaction should be settled in one suit," we hold that the court did not err in overruling the plea in abatement. Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423; Slaughter v. Morton, 185 S. W. 905; Fluhart et al. v. Rawleigh Company, 126 Ark. 307, 190 S. W. 118. It is therefore governed by articles 1842, 1843, 6336, 6337, Rev. Civ. Stat.:

Article 1842: "The acceptor of any bill of exchange, or any other principal obligor in any contract, may be sued either alone or jointly with any other party who may be liable thereon; but no judgment shall be rendered against such other party not primarily liable on such bill or other contract, unless judgment shall have been previously, or shall be at the same time, rendered against such...