Durand v. Bowen

• Decision Date: 19 December 1887
• Citation: 73 Iowa 573,35 N.W. 644
• Parties: DURAND ET AL. v. BOWEN.
• Court: Iowa Supreme Court

73 Iowa 573

35 N.W. 644

DURAND ET AL.

v.BOWEN.

Supreme Court of Iowa.

December 19, 1887.

Appeal from district court, Carroll county; J. P. CONNER, Judge.

Plaintiffs, H. C. & C. Durand, brought this action against George W. Bowen, to recover an indebtedness of $200 arising out of the sale by them to John C. Davis and his wife of certain goods and merchandise. Their claim against this defendant is upon the following writing:

“CARROLL, October 22, 1885.

H. C. & C. Durand: For value received, I hereby guaranty collection of all the present indebtedness of John C. Davis or Mrs. O. W. Davis, to whom he has sold or transferred his stock at Maple River Junction, Iowa, and authorize you to sell her goods on credit the same as you have heretofore to John C. Davis; my liability herein, however, not to exceed $200, and may be canceled by giving thirty days notice to you in writing in Chicago. This guaranty supersedes the one given you July 20, 1885.

GEORGE W. BOWEN.”

The defense pleaded is that the writing is a guaranty of collection, and that plaintiffs had not used due diligence to collect the debt from the principal. The cause was tried to the court, without the intervention of a jury, and the judgment was for defendant.George R. Cloud, for appellants.

George W. Bowen, pro se.

REED, J.

For some time before the date of the instrument set out above, John C. Davis had been engaged in business as a merchant at Maple River Junction. On the twentieth of July, 1885, defendant wrote to plaintiffs, who are wholesale dealers in Chicago, requesting them to sell to Davis such goods as he should need in his business on credit, and guarantying the payment by Davis of any indebtedness he might contract with them, not exceeding $200. On the first of October following, Davis was indebted to plaintiffs in a considerable amount for goods obtained after the execution of the guaranty, and was unable to pay his debts at their maturity. Being desirous of engaging in other business, he proposed to transfer the stock of goods on hand to O. W. Davis, his wife, she to assume his indebtedness to plaintiffs, and continue the business. Defendant wrote to plaintiffs informing them of this proposed arrangement, and urging them to consent to it. They wrote him that they would consent to this arrangement provided Mrs. Davis would enter into a written undertaking to pay the amount of her husband's indebtedness to them, and he (defendant) would give them a written contract binding himself to the same extent under the new arrangement that he...