Furst & Thomas v. Moseley

• Decision Date: 14 December 1925
• Docket Number: (No. 60.)
• Parties: FURST & THOMAS v. MOSELEY et al.
• Court: Arkansas Supreme Court

277 S.W. 877

169 Ark. 1092

FURST & THOMAS v. MOSELEY et al.

(No. 60.)

Supreme Court of Arkansas.

December 14, 1925.

Appeal from Circuit Court, White County; E. D. Robertson, Judge.

Suit by Furst & Thomas against Perrie Moseley and others. Judgment for plaintiff as against defendant named for less relief than demanded, and plaintiff appeals. Reversed and remanded, with directions.

Avery M. Blount, of Searcy, for appellant.

Miller & Pearce, of Searcy, for appellee.

SMITH, J.

This suit was brought by appellants, Furst & Thomas, against I. B. Chrisp, as principal, and Perrie Moseley, G. W. Skinner, and T. B. Scarborough, as sureties. No service was had upon Chrisp, as he had left the state, and no answers were filed by Skinner and Scarborough, and judgments were rendered against them by default, but appellee Moseley filed an answer and cross-complaint. From these pleadings it appears that Chrisp had been engaged in the sale of merchandise furnished him by appellants, Furst & Thomas, for that purpose, and on December 23, 1922, a written contract was entered into whereby Furst & Thomas agreed to sell Chrisp certain goods and merchandise on a credit. On the same day Moseley, Skinner, and Scarborough executed a contract of suretyship guaranteeing the payment of all goods sold and delivered to Chrisp, including any balance due on his contract. The contract of suretyship was executed by signing one of the printed forms used by appellants for this purpose, and its provisions are as follows:

"For and in consideration of the payment of $1.00, the receipt whereof is hereby acknowledged, and the extension of credit to the abovenamed merchant by Furst & Thomas, we, the undersigned, jointly and severally guarantee to them the faithful performance of the above contract by him and payment for goods furnished to him on credit, as therein provided, including any balance on his account for goods previously purchased by him and remaining unpaid at date of its acceptance, waiving acceptance of this guaranty and all notice, and we agree that the written acknowledgment of his account by the said merchant shall bind us, and that any extension of time shall not release us from liability thereon, and we further agree that after three months from the termination of the above agreement by either party and the non-payment of his account by said merchant, this guaranty shall become absolute as to the amount due from him and upon demand we promise to pay the amount due Furst & Thomas without any proceeding being taken by them against the said merchant.

                          "(Guarantors sign here in ink)
                Name                Occupation       P. O. Address
                Perrie Moseley      Farming          Bald Knob
                George W. Skinner   Farmer           Bald Knob
                T. B. Scarborough   Farmer           Bald Knob."
                

It was alleged in the complaint that Chrisp was indebted to appellants Furst & Thomas in the sum of $1,123.93, and judgment therefor was prayed.

In appellee's answer he denied that he was liable for any balance due by Chrisp for goods and merchandise furnished prior to the execution of the contract set out above, because that contract did not show on its face that Chrisp was then indebted to Furst & Thomas, and appellee was assured by Chrisp that there was no outstanding indebtedness. Appellee relied upon this representation of Chrisp and was induced to believe it because the contract did not show any sum then claimed by Furst & Thomas as due them. Appellee admitted that certain goods had been furnished Chrisp since the execution of the bond, and he offered to confess judgment for the value thereof.

Appellants demurred to so much of the answer as denied liability for the goods...