Fields v. Willis

• Decision Date: 14 June 1905
• Citation: 123 Ga. 272,51 S.E. 280
• Parties: FIELDS. v. WILLIS.
• Court: Georgia Supreme Court

123 Ga. 272

51 S.E. 280

FIELDS.

v.WILLIS.

Supreme Court of Georgia.

June 14, 1905.

Guaranty—Construction.

C. and F. enter into a written contract whereby C. agrees to sell to F. a certain number of cattle at a stipulated price and is to receive a stated advance on the purchase money, and C. further agrees to pay a certain amount as liquidated damages in case he fails to comply with his agreement. After the signatures to the contract appears the following, "We the undersigned guarantee the fulfillment of the above contract, " which was signed by W. The obligation of W., resting on no independent consideration, is that of surety.

[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Guaranty, § 4; vol. 40, Cent Dig. Principal and Surety, § 6.]

(Syllabus by the Court.)

Error from Superior Court, Mitchell County; W. N. Spence, Judge.

Action by E. J. Willis against S. N. Fields. Judgment for plaintiff. Defendant brings error. Reversed.

Fields instituted suit in the superior court of Mitchell county against J. M. Cox, a resident of that county, and E. J. Willis, a resident of the county of Decatur. It was alleged in the petition that the plaintiff madeand entered into a written contract with the defendants, a copy of which was attached to the petition, by which the plaintiff agreed to purchase from Cox certain cattle at named prices, according to the terms of the contract. The plaintiff alleged full compliance on his part with the contract in the manner set out in the declaration, whereby the defendants became liable to him in the amount of damages stipulated, to wit, $600. The following is a copy of the contract sued on:

"State of Georgia, County of Decatur. This agreement this day made and entered into by and between S. N. Fields, party of the first part, and J. M. Cox, party of the second part, Witnesseth: That said party of the first part agrees on his part to purchase from the said party of the second part, the following described cattle, to wit: 150 two year old steers at $6.50 per head. 150 one year old steers at $5.50 per head. 150 two year old heifers at $4.50 per head. 150 one year old heifers at $5.50 per head. And all of said cattle to be good, straight, smooth, merchantable and to be of full age. All scrub stock will be rejected by the party of the first part. Said cattle to be branded thus: S—F on left hip. Bulls are not to exceed 25% in this contract and known as the S— stock ranging in Mitchell, Decatur and Gadsden counties, State of Ga. and Fla., said cattle to be passed upon and graded in Bainbridge, Camilla and Faceville, State of Ga. and this county. Said party of the second part agrees to sustain all losses on said cattle from death, escape or otherwise until they are graded and delivered as above. Said cattle are to be delivered on or before the 1st day of June, 1898. Free on board cars as above agreed, and to be paid for at time of delivery. In order to secure and guarantee to party of the second part, and to make this contract more secure and binding on both parties, the party of the first part agrees to pay and advance as part payment the sum of $600 the receipt of which is hereby acknowledged, which said sum of money, or any other sums of money so advanced or may hereafter be advanced, is part payment on said cattle, and now for the purpose of securing unto the party of the first part the afore stipulated sums of money and the amount of fixed, liquidated, stipulated and stated damages hereinafter mentioned, it is hereby expressly understood and agreed that said party of the first part shall have liens upon any and all of said cattle, and upon all of them that shall be purchased or now owned or held by party of the second part and to enforce or foreclose said lien the said party of the first part is authorized and shall have the right at any time after the above date of delivery, to take possession of any and all of the above described cattle that may be so purchased or now owned or held by said party of the second part, wherever they may be found, and thereafter, within a reasonable time, to sell the same, either in the State or out of it, either at public or private sale, and apply the proceeds thereof to the payment of said sum of money so advanced, and said fixed, liquidated, stipulated and stated damages hereinafter mentioned. And the said sum of money so advanced as well as said fixed, liquidated, stipulated and stated damages are to be paid at Bainbridge, in Decatur County and State of Ga. and all of said parties hereto further agreed that damages in this matter being uncertain and not capable of being understood and ascertained by any satisfactory known rule, the uncertainty being in the nature of the subject itself and the particular circumstances of the transaction and has been the subject of actual and fair calculation between the parties, it is agreed upon by all parties hereto that the sum of one dollar per head shall be the fixed, liquidated, stipulated and stated damages herein and settled upon by the parties hereunto and said sum to be paid by the parties hereto in default to the other upon the failure of the party in default to comply with this agreement in whole or in part. This is signed, sealed and executed and delivered in duplicate each party retaining a copy. Witness our hands and seals this 15th day of Apr. A. D. 1898.

"Attest, W. U. Fields. S. N. Fields [Seal.]

"L. N. Cox. J. M. Cox [Seal.]

"We the undersigned guarantee the fulfillment of the above contract E. Willis.

"Witness: J. L. Thornton, N. P."

At the appearance term Willis demurred specially to the petition, and asked that it be dismissed upon the ground that the court was without jurisdiction of his person; that if he was liable he was liable under the contract declared upon as a guarantor, and not as a surety, and could only be sued in the county of his residence. The court sustained the demurrer, and dismissed the petition, and the exception is to this judgment of the court.

Sam S. Bennet, for plaintiff in error.

Albert H. Russell, for defendant in error.

EVANS, J. (after stating the facts). If the liability of Willis was that of a guarantor, the court did not err in dismissing the suit,...