J. R. Watkins Med. Co v. Marbach

• Decision Date: 26 July 1917
• Docket Number: (No. 8624.)
• Citation: 93 S.E. 270,20 Ga.App. 691
• Parties: J. R. WATKINS MEDICAL CO. v. MARBACH et al.
• Court: Georgia Court of Appeals

20 Ga.App. 691

93 S.E. 270

J. R. WATKINS MEDICAL CO.

v.MARBACH et al.

(No. 8624.)

Court of Appeals of Georgia, Division No. 2.

July 26, 1917.

(Syllabus by the Court.)

The court erred in holding that the contract sued upon was one of guaranty, and in sustaining the demurrer to the petition.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Jenkins County; H. C. Hammond, Judge.

Action by the J. R. Watkins Medical Company against F. A. Marbach and another. There was a judgment for defendants, and plaintiff brings error. Reversed.

Thos. L. Hill, of Savannah, for plaintiff in error.

E. K. Overstreet, of Sylvania, for defendants in error.

BROYLES, P. J. This was a suit on a contract, brought by the J. R. Watkins Medical Company against F. A. Marbach, as principal, and A. D. Lawrence and W. R. Rabistch as sureties. Lawrence demurred to the petition, upon the ground that the action could not be maintained, because it was proceeding against a principal and guarantors in the same action, and this was not legally permissible. The court sustained this demurrer, holding that the contract was one of guaranty, and not of suretyship. To this judgment the plaintiff excepted.

The only question for determination by this court is whether the contract was one of guaranty or of suretyship. The contract, signed by the medical company and by Mar-bach, the principal, contained the following (among other) provisions:

"For and in consideration of the promises and Agreements hereinafter contained, to be kept and performed by the party of the second part [Mar-bach], the company promises and agrees to sell and deliver to the party of the second part, free on board cars at Winona, Minnesota, or, at its option, at any of its regular places of shipment, any and all medicines, extracts, and other articles manufactured or sold, or which may hereafter be manufactured or sold, by it, at the usual and customary wholesale prices, as the party of the second part may reasonably require for sale by him from time to time, from the date hereof, until the 1st day of March, 1015, as hereinafter provided, in the following described territory excepting the incorporated municipalities therein located, to wit: In the state of Georgia: All of Jenkins county. * * * The indebtedness due at the date of this agreement from the party of the second part to the party of the first part for goods and other articles sold and delivered to him under a prior agreement is hereby mutually agreed to be the sum of twelve hundred twenty-seven and 82/100 dollars, which said indebtedness the second party hereby promises and agrees to pay during the term of this agreement, and payment of which is hereby so extended." (Italics ours.)

Just below the signatures of the medical company and Marbach, and on the same page, is the following contract:

"In consideration of one dollar in hand paid by the J. R. Watkins Medical Company, the receipt whereof is hereby acknowledged, and the execution of the foregoing agreement by said company, and the sale and delivery by it to the party of the second part of its medicines, extracts, and other articles, and the extension of the time of payment of the indebtedness due from him to said company as therein provided (italics ours), we, the undersigned sureties, do hereby jointly and severally promise and guarantee the full and complete payment of said indebtedness and for said medicines, extracts and other articles, and the prepaid freight and express thereon, at the time and place, and in the manner in said agreement provided.

                -------------------------------------------------------------------------------
                |("Witness sign here) Signed by     |                                         |
                |first surety                       |(Sureties sign here, business men        |
                |                                   |preferred. Sign in ink.)                 |
                |in our presence: W. M. Brinson.    |                                         |
                |                                   |First Surety,                            |
                |Millen, Ga. L. E. Burke,           |                                         |
                |                                   |A. D. Lawrence. Occupation, Farmer. P.   |
                |Millen, Ga. RFD. Signed by second  |O., Butts, Ga. Second Surety,            |
                |surety in our presence:            |                                         |
                |                                   |W. R. Rabistch. Occupation, Farmer.      |
                |D. W. Wiggins,                     |                                         |
                |                                   |P. O. Address,                           |
                |Butts, R. 1. Homer Burke.          |                                         |
                |                                   |Millen, Ga."                             |
                |Millen, Ga.                        |                                         |
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In Manry v. Waxelbaum Co., 108 Ga. 14 17, 33 S. E. 701, 703, Mr. Justice Cobb said:

"It is contended that the contract sued on in this case is one of suretyship, and not of guaranty. The two terms are frequently used interchangeably, and for this reason a great confusion has arisen in the books as to the proper distinction to be drawn between them. A guarantor is a surety, in the sense that he obligates himself to pay the debt of...