Great Western Printing Co. v. Belcher

• Citation: 104 S.W. 894,127 Mo. App. 133
• Parties: GREAT WESTERN PRINTING CO. v. BELCHER.
• Decision Date: 23 September 1907
• Court: Missouri Court of Appeals

104 S.W. 894

127 Mo. A. 133

GREAT WESTERN PRINTING CO. v. BELCHER.

St. Louis Court of Appeals. Missouri.

September 23, 1907.

1. JUSTICES OF THE PEACE—FILING WRITTEN INSTRUMENT.

Rev. St. 1899, § 3853 [Ann. St. 1906, p. 2139], provides that, when a suit in a justice court is founded on a written instrument purporting to have been executed by defendant, etc., the same shall be filed with the justice. Held, that where, in an action on an account guaranteed by defendant, the original account with defendant's guaranty indorsed thereon remained as one of the files in the case, both in the justice and circuit courts, and came up to the circuit court with the justice's transcript as the second paper annexed therein after the amended statement of the case, there was a sufficient filing of the paper.

2. SAME—STATEMENT—SUFFICIENCY.

Rev. St. 1899, § 3852 [Ann. St. 1906, p. 2135], provides that no formal pleadings shall be required in cases originating before a justice. Held, that a statement setting forth an account, and alleging that defendant for a consideration guaranteed the payment thereof before the delivery of the goods mentioned therein, and that, on failure of the original debtor to pay the bill, payment was demanded of defendant and refused, was sufficient.

3. FRAUDS, STATUTE OF—PROMISE TO ANSWER FOR DEBT OF ANOTHER — MEMORANDUM — SUFFICIENCY.

Rev. St. 1899, § 3418 [Ann. St. 1906, p. 1951], requires a written agreement or some memorandum thereof to be signed by a party promising to answer for the debt of another in order to render such party liable thereon. Held, that a written memorandum showing the names of the creditor, the original debtor, and of defendant as guarantor of the debt, the date, the several items, and the date thereof, with the separate charge for each, together with the total thereof, was sufficient.

4. SAME—SIGNATURE OF GUARANTOR—SUFFICIENCY.

Under Rev. St. 1899, § 3418 [Ann. St. 1906, p. 1951], requiring a written agreement or some memorandum thereof to be signed by a party promising to answer for the debt of another in order to render such party liable thereon, a guaranty is not void because the guarantor fails to sign his first name thereto.

5. SAME—TIME OF PAYMENT.

A memorandum of guaranty of payment of a bill for goods need not state the time of payment; the presumption being, where no terms of credit appear, that cash was to be paid on delivery of the goods.

6. GUARANTY—CONSIDERATION.

The employment of the word "guaranty" implies, when it does not appear to the contrary, that the entire matter was one concurrent act, and the contract of guaranty was part of the original agreement, supported by the same consideration.

7. EVIDENCE—PAROL EVIDENCE—GUARANTY.

While parol evidence is incompetent to alter or vary a written contract of guaranty, nor to add to or piece out an insufficient memorandum under the statute of frauds, so as to supply provisions not in the writing, it may be resorted to for the purpose of informing the court of the situation of the parties and the circumstances under which the writing was made.

8. GUARANTY—LIABILITY OF GUARANTOR—DEMAND — NECESSITY.

The general rule is that, if a contract of guaranty is absolute, the liability of the guarantor is commensurate with that of the principal, and hence, where no proof of demand of payment is necessary as against the principal, none need be proved as against the guarantor.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by the Great Western Printing Company against George Belcher. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. M. Smith, for appellant. S. T. G. Smith, for respondent.

NORTONI, J.

This case originated before a justice of the peace, and several of the arguments advanced here relate to the proceedings had in that court. However that may be, the case found its way into the circuit court, where judgment was given for the plaintiff, and defendant appeals. So much of the proceedings had in the circuit court which are relevant to the arguments advanced for a reversal of its judgment only will be noticed.

The amended statement filed before the justice of the peace and upon which the case was tried, omitting caption, is as follows: "Plaintiff, for an amended statement, says that W. M. Michaels and others did contract the bill with the Great Western Printing Company, amounting to $44.50, the statement of which is hereto attached and made a part of this statement. Plaintiff further states that before the delivery of the goods, and as a consideration for the delivery of said goods, the defendant, in writing, guaranteed the payment of said account. Plaintiff further states that said W. M. Michaels and others failed to pay said bill, whereupon it demanded the same of defendant, who refused to pay it. Whereupon plaintiff prays judgment against the defendant on said guaranty for the sum of forty-four dollars and fifty cents ($44.50)." To which statement was annexed the following account stated:

                                  St. Louis, Nov. 18, 1905
                   W. M. Michaels, World's Fair Employés, to
                     Great Western Printing Co., 513 Elm
                                   Street, Dr
                  To 1000 1 Sheet Posters ............  $12 50
                  To  200 3    "     "     ...........   12 00
                  To  100 8    "     "     ...........   20 00
                                                        ______
                                                        $44 50
                

Upon a trial, it appeared that one W. M. Michaels, for himself and others, ordered from the plaintiff, a printing establishment, the posters mentioned in the account, the purpose of which was to advertise a ball about to be given. Plaintiff proceeded to print the posters, but declined to deliver the same without pay unless the account therefor be guaranteed, whereupon, before delivery of the posters, this defendant, in consideration of the delivery thereof to be made to said Michaels, agreed to and did guarantee the payment of the account, and, as evidence of the agreement, wrote in pencil across the face of the original account the words: "Guaranteed. Belcher." Whereupon the posters were duly delivered, etc. This original account and the defendant's written indorsement thereon were filed in the first instance before the justice of the peace as the original cause of action under the provisions of section 3852, Rev. St. 1899 [Ann. St. 1906, p. 2135]. Summons was issued thereon, and defendant appeared thereto. The statement was afterwards amended, however, in compliance with the wishes of defendant, he having moved therefor, and, as amended, is above set out. The original account with defendant's guarantee indorsed thereon remained as one of the files in the case, both in the justice of the peace and circuit courts...