Emerson Mfg. Co. v. Rustad

• Decision Date: 14 April 1909
• Citation: 19 N.D. 8,120 N.W. 1094
• Parties: EMERSON MFG. CO. v. RUSTAD.
• Court: North Dakota Supreme Court

19 N.D. 8

120 N.W. 1094

EMERSON MFG. CO.

v.RUSTAD.

Supreme Court of North Dakota.

April 14, 1909.

Syllabus by the Court.

Defendant signed and delivered the following written instrument, contained on the back of a contract between plaintiff and one T., whereby T., a local dealer, purchased certain farm implements from plaintiff: “In consideration of one dollar to me in hand paid by Emerson Manufacturing Company, the receipt of which I hereby acknowledge, I hereby guarantee the fulfillment of the within contract and the prompt payment of all obligations given under or arising out of it, and all renewals of the same, on the part of I. K. Tvedt, Kindred, N. D., and waive demand and notice of nonfulfillment and nonpayment. This guaranty is given at the time of the execution of the within contract, and is made a part of the same.”

Held, that such instrument constitutes an absolute guaranty, and hence notice to defendant of plaintiff's acceptance thereof was unnecessary in order to bind him.

Standard Sewing Machine Company v. Church et al., 11 N. D. 420, 92 N. W. 805, distinguished.

Appeal from District Court, Cass County; Pollock, Judge.

Action by the Emerson Manufacturing Company against John Rustad and another. Judgment for defendant Rustad, and plaintiff appeals. Reversed.Stambaugh & Fowler, for appellant. M. A. Hildreth, for respondent.

FISK, J.

In the month of March, 1905, plaintiff, Emerson Manufacturing Company, a manufacturer of farm implements at Rockford, Ill., entered into the usual contract with defendant Tvedt, whereby the latter, who was a local dealer in farm machinery at Kindred, this state, ordered from plaintiff certain machinery at stipulated prices, to be shipped to Kindred, and said defendant was given the exclusive sale during said season of such machinery in the territory tributary to Kindred and other designated points near there. Upon the back of the printed order the respondent, Rustad, signed the following guaranty: “In consideration of one dollar to me in hand paid by Emerson Manufacturing Company, the receipt of which I hereby acknowledge, I hereby guarantee the fulfillment of the within contract and the prompt payment of all obligations given under or arising out of it, and all renewals of the same, on the part of I. K. Tvedt, Kindred, N. D., and waive demand and notice of nonfulfillment and nonpayment. This guaranty is given at the time of the execution of the within contract, and is made a part of the same. [Signed] John Rustad. Post Office, Kindred, N. D.” Tvedt defaulted in making payments due plaintiff under the contract, and this action was brought against both Tvedt and Rustad to recover the amount of Tvedt's indebtedness to plaintiff. The amount of such indebtedness is not in dispute, and plaintiff had judgment against Tvedt in the court below; but the trial court directed a verdict in favor of Rustad upon the theory that there was no liability against him, because plaintiff never notified him of its acceptance of the Tvedt contract or...