HUDEPOHL BREWING CO. v. Bannister

• Decision Date: 30 June 1943
• Docket Number: No. 360.,360.
• Citation: 50 F. Supp. 422
• Parties: HUDEPOHL BREWING CO. v. BANNISTER.
• Court: U.S. District Court — District of South Carolina

50 F. Supp. 422

HUDEPOHL BREWING CO. v. BANNISTER.

No. 360.

District Court, W. D. South Carolina.

June 30, 1943.

Watkins & Prince, of Anderson, S. C., and Blythe & Bonham, of Greenville, S. C., for plaintiff.

Oscar H. Doyle and T. S. Banister, both of Anderson, S. C., for defendant.

WYCHE, District Judge.

This matter is before me a second time on defendant's motion to dismiss.

On February 16, 1942, plaintiff filed an action¹ against the defendant, and sought to recover on the same cause of action set forth in the complaint now under consideration. The first complaint was dismissed on the ground that it did not state a claim upon which relief could be granted, (D.C., 45 F.Supp. 201) because the letter written by the defendant, considered in the light of the circumstances surrounding its writing, did not constitute a guaranty. No appeal was taken from the order to dismiss, but a second suit was instituted August 19, 1942, upon the same allegations in the first complaint, except there has been added to paragraph five the following: "That during the latter part of January or first of February, 1940, after the above stated letter had been delivered to plaintiff and goods sold in reliance thereon to Colonial Distributing Company, a representative of the plaintiff again visited the defendant, because Colonial Distributing Company had failed to make prompt payment for said goods, and said representative of the plaintiff made demand upon the defendant that he have the account reduced either by payment by Colonial Distributing Company or by the defendant. Whereupon, the defendant stated to plaintiff's representative that the plaintiff need have no apprehension or fear about collecting the account, for he, the defendant, had written a letter to the plaintiff, in which he had guaranteed the account of the Colonial Distributing Company. The letter to which the defendant referred is that above quoted."

Plaintiff contends that the portion added to paragraph five of the complaint is sufficient to save it from the motion to dismiss, because it shows the construction defendant himself put upon the letter, and that such construction by him, approximately two months after the execution and delivery of the letter, relied upon as a guaranty, must be considered as a part of the circumstances surrounding its writing.

It is true that the language employed in an alleged guaranty is to have a reasonable interpretation according to the intention of the parties as disclosed by the instrument read in the light of the surrounding circumstances, and the purpose for which it was made. 45 F.Supp. 201. But, read in the light of the surrounding circumstances, means read in the light of the surrounding circumstances at the time the instrument was executed and delivered. The character of the writing was fixed at the time it was executed and delivered. It was then a guaranty or it was not, and nothing the defendant may have said about it two months afterwards could change its nature. The facts of this case do not come within the scope of decisions which hold that the construction which parties themselves have put upon their contracts may be looked to in order to ascertain the true meaning of an ambiguous instrument. In all of these cases the existence of a contract is admitted, but parties have differed as to its proper construction. It is reasonable, therefore, that what the parties have done in execution of a contract is relevant to the issue of what they intended to do when the contract was made. Cases in South Carolina which affirm this doctrine are: Pennell & Harley, Inc., v. Hearon et al., 169 S.C. 16, 168 S.E. 188; Williamson v. Eastern B. & L. Association, 54 S.C. 582, 32 S.E. 765, 71 Am.St.Rep. 822; Herndon v. Wardlaw, 100 S.C. 1, 84 S.E. 112. But, what is now sought to be done in this case...