Ehl v. J.R. Watkins Medical Co.

• Decision Date: 14 April 1927
• Docket Number: 6 Div. 881
• Citation: 112 So. 426,216 Ala. 69
• Parties: EHL et al. v. J.R. WATKINS MEDICAL CO.
• Court: Alabama Supreme Court

112 So. 426

216 Ala. 69

EHL et al. v. J.R. WATKINS MEDICAL CO.

6 Div. 881

Supreme Court of Alabama

April 14, 1927

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

Action on a contract of guaranty by the J.R. Watkins Medical Company against C.C. Ehl and another. From a judgment for plaintiff defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

S.T Wright, of Fayette, for appellants.

W.L Harris, of Fayette, and J.J. Ray, of Jasper, for appellee.

BROWN J.

This is an action against the guarantors to recover the balance of an indebtedness due from Perkins, the principal, to the plaintiff at the time the guaranty, the basis of the action was given. The consideration, in part, for the guaranty, was an extension of the time of payment in the principal contract, by the terms of which the indebtedness was to be paid by Perkins during the life of the principal contract. The contract was entered into on December 1, 1914, and terminated on the 1st of March, 1916. By the terms of the guaranty, the defendants "jointly and severally promise and guarantee the full and complete payment of said sum."

The contract is one of absolute guaranty, and the failure of the principal to pay the debt within the time provided in the principal contract fixed the liability of the guarantors, without regard to the question of the principal's solvency or insolvency, and the plaintiff was under no duty to the guarantors to pursue its remedy against the principal as a prerequisite to its right to recover against the guarantors. Leftkovitz v. First Nat. Bank of Gadsden, 152 Ala. 521, 44 So. 617; Donley v. Camp, 22 Ala. 659, 58 Am.Dec. 274. This view justifies the court's rulings on the demurrers to the complaint. 58 Am.Dec. 274; Baskett Lumber Co. v. Gravlee, 15 Ala.App. 359, 73 So. 291; Scharnagel et al. v. Furst & Thomas (Ala.Sup.) 112 So. 102.

In Walker v. Forbes, 25 Ala. 139, 60 Am.Dec. 498, much significance was given to the word "ultimate" in the contract, and there the court held that the contract was not an absolute guaranty, but a guaranty to "ultimately" pay on a failure to collect from the principal "after the plaintiffs had used all the means in their power, which were reasonable and proper, to coerce payment out of Cogburn, who was understood to be the party primarily liable." In Rawleigh Med. Co. v. Tarpley, 5 Ala.App. 412, 59 So. 512, the guarantors engaged to pay in case the principal "could not perform." These decisions and others of like import are not applicable to the contract declared on in the complaint.

The defendants, as appears from the record, had the full benefit of the defense that the contract had been materially altered since its execution under their second plea, and, if it should be conceded that pleas separately interposed and designated as "first," setting up this defense, were not subject to the objections stated in the demurrers, yet the sustaining of the demurrer would be error without injury.

Pleas A and C were in effect the general issue correctly pleaded in pleas F and E, and pleas B and C were not in good form either as the general issue, non est factum, or pleas in confession and avoidance, and the demurrers to these pleas were sustained without error.

Pleas of non est factum are divided into two classes, general and special. In the first class mentioned the defendant denies the execution of the contract sued on in any form by himself or by any one authorized to bind him in the premises. Under pleas of this class, the burden is on the plaintiff to prove the execution of the contract, the subject-matter of the suit, before it can be properly received in evidence. Code of 1923, § 7663; Sulzby v. Palmer, 196 Ala. 645, 70 So. 1.

In the other class the written contract, the foundation of the suit purporting to be signed by the defendant, may be...