Griffin, Bro. & Co. v. Rembert
| Decision Date | 18 May 1871 |
| Citation | 2 S.C. 410 |
| Parties | GRIFFIN, BRO. & Co. v. E. T. REMBERT AND OTHERS. |
| Court | South Carolina Supreme Court |
Defendants signed a letter, addressed to F., as follows: " As you request, we are willing to help you in the purchase of a stock of goods. We will, therefore, guarantee the payment of any bills which you may make, under this letter of credit, in Baltimore, not exceeding in the whole fifteen hundred dollars:" Held , That any party advancing goods to F., upon the faith of the promise contained in the letter could maintain an action thereon against the defendants as guarantors.
A party may maintain an action on a written agreement, within the fourth Section of the Statute of Frauds, though his name does not appear therein. The fact that he became a party to the agreement may be shown by parol.
One who gives a guaranty for future advances to be made is entitled to notice of the acceptance of the guaranty; but the notice need not be express, nor is it necessary that it should be given by the creditor. It may be inferred from circumstances.
BEFORE GREEN, J., AT SUMTER, OCTOBER TERM, 1870.
This was an action of assumpsit against E. T. Rembert, D A. Foxworth, F. Joye and I. W. Bradley, defendants, upon the letter of guaranty hereinafter mentioned. Rembert and Bradley were the only defendants who appeared and pleaded to the action.
The appeal was heard upon a case containing exceptions, which is as follows:
" The plaintiffs then, to maintain the issues on their part, called as a witness Francis Joye, one of the defendants, who testified that the signatures of the defendants to a certain letter were genuine.
The letter was then read in evidence, and is as follows:
SUMTER S. C., October 15, 1866.
" The same witness further testified that, under a power of attorney from F. E. Joye, he went to Baltimore, taking with him the letter, and purchased there, in November, 1866, for his principal, from six different firms, bills of goods, amounting, in the whole, to something less than $1,500. The plaintiffs' was one of the firms. Their bill amounted to $341.70. The goods were shipped to and received by F. E. Joye. The purchases were made on a credit of four months. Witness exhibited the letter from defendants to all the firms, and the purchases were made under it.
The plaintiffs' bill was identified by the witness, and received in evidence. It is dated November 12, 1866, and headed ‘ F. E. Joye to Griffin, Bro. & Co., Dr.’
The same and other witnesses for plaintiffs testified that, in December, 1866, the defendants, Rembert and Bradley, learned from F. Joye and F. E. Joye that the latter had purchased goods in Baltimore. They were also allowed to testify, against the objections of Rembert and Bradley, that some time after the goods were purchased, in February, 1867, they, Rembert and Bradley, received notice that F. E. Joye was not conducting his business properly; and, thereupon, they applied to him to turn over what remained of his goods and effects to them-saying they were the only responsible ones of the parties, and that they would pay the debts; that, after some hesitation, he consented, and turned over to Bradley, for himself and Rembert, a little money and some goods and credits, the whole amounting, as the witness, F. Joye, thought, to about $1,400.
The plaintiffs here rested, and the defendants, Rembert and Bradley, by their counsel, moved for a non-suit, on the grounds:
I. That the letter read in evidence did not sustain the allegations of the declaration-that, according to its legal construction, it was not a guaranty, but a mere promise to F. E. Joye himself that the defendants would guaranty such bills as he might purchase, & c.-that such promise was void for want of consideration, and no action could be maintained upon it by any one.
II. That a guarantee is an agreement, within the fourth Section of the Statute of Frauds; that no party can maintain an action upon any agreement, within that Section, unless he be named in it; and as the plaintiffs are not named in the letter they can maintain no action upon it-the name being an essential part of the agreement, which parol evidence is inadmissible to supply.
III. That, assuming the evidence of an agreement to guaranty to be otherwise sufficient, still the proof was fatally defective, for plaintiffs had not shown, nor offered evidence tending to show, that they had given notice to Rembert and Bradley, or either of them, that they had accepted the guaranty, and such notice was necessary.
The Court denied the non-suit, and the defendants, Rembert and Bradley, by their counsel, excepted.
The defendants offered no evidence, and the cause was summed up by the respective counsel.
The Court charged the jury:
I. That it is not necessary that a party should be named in an agreement, within the fourth Section of the Statute of Frauds, to enable him to maintain an action thereon.
II. That the construction of the letter was for the jury, and if they should find, first, that it was intended as a guaranty, and not as a mere promise to F. E. Joye, himself, to guaranty; second, that the plaintiffs' bill was made in Baltimore; and, third, that defendants had reasonable information that the goods had been purchased under the guaranty; then they should find for the plaintiffs.
III. That notice of acceptance was necessary in order to bind the defendants, but notice might be presumed from the fact that the defendants, Bradley and Rembert, took the goods out of the possession of F. E. Joye on the ground that they were the only solvent parties who had signed the letter of credit.
To the charge in each and all the points stated, the defendants, Rembert and Bradley, by their counsel, excepted.
The jury found for the plaintiffs $341.70, the amount of their bill."
On the case containing exceptions the defendants, Rembert and Bradley, on October, 1870, moved for a new trial. The motion was denied, and on 22d October, 1870, the plaintiffs entered judgment on the verdict.
The defendants, Rembert and Bradley, appealed to this Court, and now moved:
1. That a non-suit be granted on the grounds, or some one of the grounds, taken for a non-suit in the Court below.
And, failing in that motion, then,
2. That a new trial be granted on the ground that the Judge below erred in his charge to the jury on all, or some, or one of the points to which exceptions were taken at the trial.
J. S. G. Richardson , for appellants.
Blanding , contra.
The action seeks to charge the defendants on the guaranty of which the following is a copy:
" SUMTER, S. C., October 15, 1866.
MR. FRANCIS E. JOYE- Dear Sir: As you request, we are willing to help you in the purchase of a stock of goods. We will, therefore, guarantee the payment of any bills which you may make under this letter of credit in Baltimore, not exceeding, in the whole amount, fifteen hundred dollars." Signed by the defendants.
The first ground on which the non-suit was asked, was " that the letter read in evidence, according to its legal construction, was not a guarantee, but a mere promise to F. E. Joye, himself, that the defendants would guaranty such bills as he might purchase, & c.; that such promise was void for want of consideration, and no action could be maintained upon it by any one."
The letter is to be construed as a whole, and effect is to be given to it by looking to the several parts which it contains. It is addressed to the party to be benefitted, in answer to some request for aid in the purchase of a stock of goods.
A direct obligation is assumed to guaranty the payment of any bills contracted in Baltimore, not to exceed a certain amount, and those bills were to be made " under" the writing which the signers call " a letter of credit."
If A were to address a letter to B, saying, I will guarantee the payment of any bills which C makes with you for goods to be sold him, we apprehend but little doubt would exist that a collateral liability would attach.
The introduction of the word " therefore," in the paper before us, can, in no way, qualify, much less defeat, the legitimate consequence which must result from the assumption which was intended by the terms employed by the signers.
The word was used to designate the mode by which the request of F. E. Joye for assistance was answered, and the " help" was extended by their guaranty of his purchases in Baltimore.
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