Int'l Harvester Co. of Am. v. Fleming

• Decision Date: 05 April 1912
• Citation: 82 A. 843,109 Me. 104
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. FLEMING.
• Court: Maine Supreme Court

82 A. 843

109 Me. 104

INTERNATIONAL HARVESTER CO. OF AMERICA

v. FLEMING.

Supreme Judicial Court of Maine.

April 5, 1912.

Report from Supreme Judicial Court, Penobscot County.

Action by the International Harvester Company of America against John G. Fleming, in assumpsit, to recover a balance due on a note given by Ora A. Fleming, and guaranteed by the defendant. Plea the general issue, with a brief statement alleging "that the consideration for which the supposed guaranty was made has wholly failed." On report. Judgment for plaintiff.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Artemus Weatherbee and Charles J. Dunn, for plaintiff.

G. Willard Johnson, for defendant.

HANSON, J. Assumpsit to recover a balance due on a note given by Ora A. Fleming and guaranteed by the defendant.

On May 7, 1907, Ora A. Fleming of Lincoln, Me., signed the following note as promisor:

"$675.00 Lincoln, Maine, 5—7, 1907.

"Boston Number 32,068, Year 1907.

"On or before the first day of Oct., 1907, for value received, I promise to pay to International Harvester Company of America, or order, the sum of six hundred and seventy-five dollars, no interest until due, at 6 per cent. from date.

"Payable at Lincoln, Maine.

"After maturity this note shall draw Interest at 8 per cent.

"It is expressly agreed that the title to the * * * machine for which this note is given shall remain in the International Harvester Company of America until this and all other notes given for the purchase price of said machine shall be paid in full. If default is made in the payment of any of said notes, or the machine is levied upon, or undersigned attempts to sell or remove same, or, if said company for reasonable cause deems itself insecure, it may declare all notes due, and also may take possession of said machine and sell it at public or private sale, without any notice whatever. In consideration of the use of said machine, I hereby agree to pay any balance remaining unpaid after net proceeds are applied.

"Ora A. Fleming.

"Post office: Lincoln, Maine.

"County: Penob. R. F. D. No.

"Section—Township—Range

"Witness to signature: F. A. Hoar.

"5% disc, if paid Oct. 1st, 67."

On the same day the defendant signed a guaranty on the back of the note, the guaranty reading as follows:

"Guaranty.

"For value received, I hereby guarantee the payment of the within note, and all renewals and extensions thereof to the payee therein named or any owner and holder thereof; and I hereby waive protest, due presentment, demand and notice of nonpayment thereof; and I hereby waive diligence on the part of any holder thereof in collecting said note and all defenses arising out of lack of diligence in enforcing payment thereof. John G. Fleming.

"Protest waived.

"For Collection Account of International Harvester Company of America, Auburn, N. Y."

The case was submitted to the law court on report, the parties stipulating that the law court shall enter such judgment as the legal rights of the parties require.

The plaintiff claims that the note was given in payment for a gasoline engine ordered the same day by Ora A. Fleming, and that the order for the engine, in the usual form, was signed at the same time and place by Ora A. Fleming; that the note and order in triplicate, and the guaranty, were the only papers executed in the transaction.

The defendant contends that, while the above papers were executed, there was another document executed at the same time by Ora A. Fleming and the agent of the plaintiff, called by defendant an application for an agency, which document was intended to take the place of the order for the engine, and further that the defendant signed as guarantor solely upon that understanding, and with the agreement that Ora A. Fleming should be appointed selling agent of the plaintiff in the vicinity of Lincoln; and here is the principal if not the only question in the case. Defendant says it was "understood, at least by implication, that the agency contract took the place of the ordinary sale contract first signed by Ora A. Fleming"; "that it was understood, at least by implication, that it was but a tentative arrangement to save time, and that the agent of the company was to take the contract for an agency and the note and present it to the company for its acceptance or rejection;" "that the engine was duly shipped to Ora A. Fleming, and, as he and John G. Fleming, the defendant, thought the agency contract was accepted, no questions were asked, and they waited, and it does not appear in evidence just when they first knew that the first contract which was signed by Ora A. Fleming was the one which plaintiff company claimed to have sold the engine under, except that the defendant probably knew of it at the time the suit was brought against the son to recover on the note."

The note was dated March 7, 1907, and was payable October 1, 1907. Ora A. Fleming was sued on the note March 1, 1909, and, after the evidence was taken out, by agreement of the parties a discount of $75 having been made, a verdict was directed for the plaintiff for $796.49. Plaintiff pursued the judgment and the engine was sold thereon, return made, and an alias execution issued, on which Ora A. Fleming having disclosed, and having received discharge upon disclosure, the execution was returned in no part satisfied. Thereupon this action was brought. The plaintiff introduced the note, order, and execution, and rested his case.

The defendant claimed that his guaranty was procured by the agent...