Ferst v. Blackwell

• Citation: 22 So. 892,39 Fla. 621
• Parties: FERST et al. v. BLACKWELL.
• Decision Date: 16 November 1897
• Court: United States State Supreme Court of Florida

22 So. 892

39 Fla. 621

FERST et al. v. BLACKWELL.

Florida Supreme Court

November 16, 1897

Appeal from circuit court, Suwannee county; John F. White, Judge.

Action by M. Ferst, J. Ferst, and Joseph Strauss, partners, under firm name and style of M. Ferst & Co., against B. B Blackwell. Judgment for defendant, and plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. An offer of a continuing guaranty, executed by the guarantor at the special request of the agent of the person to whom the guaranty is addressed, and delivered to such agent, who accepts same, and agrees to make advances thereon to the person for whose benefit the guaranty is executed, requires no further notice of acceptance in order to bind the guarantor.

2. No notice of particular purchases by one for whose benefit another has executed a continuing guaranty is necessary in order to bind the guarantor upon such guaranty. If any notice is necessary, it is sufficient that the guarantor be notified of the amount due under such guaranty within a reasonable time after all transactions with the principal debtor, based upon the guaranty, have been closed; and even then, if no injury results to the guarantor from the failure to give notice, the omission will not bar recovery.

3. If A., for the purpose of strengthening the credit of B., agrees with C. to become responsible for goods to be sold in the future by him to B., and C. accepts the agreement, and acts upon it by selling goods to B., the agreement of A. is founded upon a valid consideration.

COUNSEL

J. S. White, for appellants.

B. B Blackwell, in pro. per. Appellants, on March 22 1888, began an action of assumpsit against appellee in the circuit court of Suwannee county; the first count of the declaration, filed March 30, 1888, alleging, in substance, that on April 16, 1887, in consideration that plaintiffs, at the special instance and request of defendant, would sell and deliver to one E. J. McDaniel, on credit, all bills of goods that might be ordered or purchased by said McDaniel, not to exceed $1,000 at any one time, the defendant undertook, and then and there faithfully promised in writing, to pay plaintiffs all bills of goods ordered or purchased by E. J. McDaniel, not to exceed $1,000 at any one time, until such guaranty was withdrawn by notice to plaintiffs in person or in writing; that, confiding in such promise, plaintiffs did, on April 18, 1887, and on divers days and times from that date until and including November 12, 1888, sell and deliver to said McDaniel all goods ordered and purchased by him, not exceeding the sum of $1,000 at any one time, on certain credit agreed upon between plaintiffs and McDaniel, for reasonable sums of money, amounting to $602.11; and that, although the credit and time of payment for the price of said goods by McDaniel had long since elapsed, yet McDaniel, though often requested, had not paid said sum, or any part thereof,--of all which premises the said defendant on the --- day of March, 1888, had notice; that defendant, disregarding his obligation, had not paid said sum of $602.11, although requested so to do on the date last mentioned, to plaintiffs' damage of $1,000.

The second and third counts were the common counts for goods sold and accounts stated.

On May 7, 1888, defendant filed pleas: (1) 'That said guaranty upon which plaintiffs sue was signed and executed by this defendant without any consideration whatever;' (2) 'that he [the defendant] had no notice of advances made or goods sold by plaintiffs upon said guaranty, and of the acceptance thereof.' Issues were joined upon the pleas, and at the fall term, 1888, of the circuit court, a trial by jury was had, resulting in a verdict for defendant. A motion for new trial, upon the ground that the verdict was contrary to the evidence, the law, and the charge of the court, was overruled, and judgment entered for defendant upon the verdict, from which this appeal was taken at the same term, in open court.

The paper writing referred to in the declaration and pleas is in the following language:

'Live Oak, Fla., April 16th, 1887. I hereby agree and promise to pay to M. Ferst & Co., of Savannah, Ga., all bills of goods that may be ordered or purchased by E. J. McDaniel, not to exceed one thousand dollars at any one time, until this guaranty is withdrawn by notice to them in writing or in person. I mean by this that Mr. E. J. McDaniel is not to owe M. Ferst & Co. for over the amount above named at any one time, and bind me therefor. B. B. Blackwell.

'Witness: Ben J. Apple.'

OPINION

CARTER, J. (after stating the facts).

The only error assigned is based upon the ruling of the circuit court denying plaintiffs' motion for a new trial. This requires us to determine whether the evidence was legally sufficient to sustain the verdict. The issues tried in the court below were evidently framed upon the theory that the paper sued upon was, upon its face, an offer of a continuing guaranty for the debts of McDaniel, requiring notice of its acceptance and notice of advances made or goods sold under it, in order to bind the defendant. It is here insisted by appellants that this paper was of such a character that no such notices were required. If this be true, issue should not have been joined upon the second plea, but its sufficiency should have been tested by demurrer or in some other appropriate manner. Hood v. French, 37 Fla. 117, 19 So. 165; Steamship Co. v. Burrows, 36 Fla. 121, 18 So. 349. We shall therefore treat the paper as an offer of a continuing guaranty, requiring notice of acceptance and notice of advances made or goods sold under it, in accordance with the issues tried by the court below.

I. Two questions were presented for the consideration of the jury by this second plea: First. Did defendant have notice of plaintiffs' acceptance of the offer of guaranty? Second. Did defendant have notice of advances made or goods sold by plaintiffs in reliance upon such guaranty? There was no evidence whatever to justify a negative answer to these questions, such as the jury necessarily gave by their verdict.

First. Plaintiffs' agent testified: That on April 16, 1887, he sold McDaniel a bill of goods for cash amounting to about $800. That McDaniel referred him to defendant for the money. That defendant paid him a portion of the money that day, and promised to send balance in a few days. That defendant then told him he expected to buy his groceries from McDaniel; that he felt an interest in McDaniel, and wanted to help him along; that witness might ship McDaniel at any time as much as $1,000 worth of groceries, and 'I will be responsible for them; I will see them paid for.' That witness told defendant, 'That is all right with me, and we will do so, but the firm would be better satisfied if you would put that in writing,' to which defendant replied, 'All right; I'll do it;' and thereupon turned to...