H.S. Gile Grocery Co. v. Lachmund

• Decision Date: 23 February 1915
• Citation: 75 Or. 122,146 P. 519
• Parties: H. S. GILE GROCERY CO. v. LACHMUND.
• Court: Oregon Supreme Court

146 P. 519

75 Or. 122

H. S. GILE GROCERY CO. v. LACHMUND.

Supreme Court of Oregon

February 23, 1915

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by the H. S. Gile Grocery Company against Louis Lachmund. Judgment for the plaintiff, and defendant appeals. Affirmed.

The complaint alleges, in substance, that between January 4 1912, and June 12th of the same year, the plaintiff sold and delivered to Robert Glisan merchandise, for which the latter agreed to pay $964.38, all of which was charged to his account; that, though demand has been made upon him for the payment of the same, Glisan has not paid any part thereof except $317.39. As affecting the defendant directly, the averments of the complaint are these:

"That on or about the 20th day of January, 1912, defendant herein duly guaranteed the payment of the said account with the said Robert Glisan to the amount of $250, thereby guaranteeing the account then in existence as well as payment for such goods, wares, and merchandise as might be furnished to Robert Glisan by plaintiff in the future, and charged to said account, and that the said guaranty was in writing, expressing a consideration, and signed by the defendant. * * * That the said defendant has been duly notified of the nonpayment of said account by the said Robert Glisan, and demand has been duly made upon said defendant for the payment of the said account up to and including the amount of his guaranty of $250, but that said defendant has and does now fail, neglect, and refuse to pay the same or any part thereof."

After denying all the allegations of the complaint, except as stated in the answer, the defendant says that subsequent to the commencement of the action an itemized statement furnished by plaintiff on his demand disclosed that:

"The plaintiff, as shown by said statement so furnished, sold and delivered to the said Robert Glisan on and between the 20th day of January, 1912, and the 2d day of July, 1912 goods, wares, and merchandise of the value of $399.92; that on the 20th day of January, 1912, defendant guaranteed to plaintiff the payment of the account of Robert Glisan to the amount of $250, and in such guaranty provided that the same should be valid and binding until the defendant gave notice of the withdrawal and cancellation of the same."

After stating that he gave notice of withdrawal and cancellation of the guaranty July 2, 1912, the defendant further declares:

"That subsequent to the execution of the said guaranty and prior to the 2d day of July, 1912, the said Glisan paid plaintiff on account of goods, wares, and merchandise purchased by him between said dates the sum of $392.66, thereby leaving due plaintiff a balance on account of the sale of said goods the sum of $7.26."

The balance admitted was offered to the plaintiff prior to the commencement of the action, but was refused. The reply traverses the new matter in the answer, except as set forth in the complaint. A jury trial resulted in a verdict in favor of the plaintiff for $250, and from the resulting judgment the defendant appeals.

J. A Carson, of Salem (Carson & Brown, of Salem, on the brief) for appellant. W. C. Winslow, of Salem, for respondent.

BURNETT, J. (after stating the facts as above).

The defendant maintains that he is not liable upon his contract of guaranty unless the plaintiff first had exhausted all...