Jobes v. Miller

• Decision Date: 17 February 1919
• Docket Number: No. 13172.,13172.
• Citation: 209 S.W. 549,201 Mo. App. 45
• Parties: JOBES v. MILLER.
• Court: Missouri Court of Appeals

209 S.W. 548

JOBES v. MILLER.

No. 13172.

Kansas City Court of Appeals. Missouri.

February 17, 1919.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by C. S. Jobes against David Miller. From the action of the court in sustaining an objection to the introduction of any evidence under the petition, plaintiff appeals. Affirmed.

Capron, Butcher & Knoop, of Kansas City, for appellant.

H. L. Arnold, of Kansas City, for respondent.

BLAND, J.

This is an appeal from the action of the trial court in sustaining an objection to the introduction of any evidence under the petition, on the ground that the Petition fails to state a cause of action. The petition alleges that on or about the 9th day of February, 1914, the Boicourt Coal Company, by David Miller, its president, made, executed, and delivered to James P. Ellison its certain negotiable promissory note, by which it promised to pay on demand to the said James P. Ellison, or order, $950, with interest thereon at 8 per cent. per annum; "that at the same time and as a part of the same transaction, the defendant, David Miller, executed a written guaranty, guaranteeing to the said James P. Ellison the payment of the note above described; said guaranty being for a valuable consideration, and in words and figures as follows:

"Kansas City, Missouri, February 1, 1914.

"J. P. Ellison, 707 Central St., Kansas City, Mo. I hereby guarantee to pay personally, note of nine hundred and fifty dollars ($950.00) and interest from date at 8 per cent., of the Boicourt Coal, Co., dated February 9th, 1914, and signed by me, as president of that concern, and also any collection fees or expenses you may be put to regarding said note. David Miller." (Italics ours.)

The petition further alleges "that on or about the 9th day of September, 1915, said James P. Ellison assigned, transferred, and conveyed" said note to plaintiff together with said "guaranty."

A guaranty is defined to be:

"A separate, independent contract, by which the guarantor undertakes, for a valuable consideration, to be answerable for the payment of some particular debt, or future debts, or the performance of some duty, in case of the failure of another person primarily liable to pay or perform." Tidioute Savings Bank v. Libbey, 101 Wis. 193, loc. cit. 196, 77 N. W. 182, 183 (70 Am. St. Rep. 907).

There are several kinds of guaranties, but, generally speaking, they are divided into general and special. A general guaranty is one open to acceptance by the public generally. A special guaranty is limited to the person to whom it is addressed, and usually, but not necessarily, contemplates a trust or reposes a confidence in such person. A special guaranty may not be assigned until a right of action has arisen thereon. Tidioute Savings Bank v. Libbey, supra; Everson v. Gere, 122 N. Y. 290, 25 N. E. 492; Schoonover v. Osborne, 108 Iowa, 453, loc. cit. 458, 79 N. W. 263; Allison v. Rutledge, 13 Tenn. (5 Yerg.) 193.

Some controversy appears to have formerly existed in respect to the rule governing the construction of guaranties, whether the rule should apply which entitles a surety to have his contracts strictly construed, or that imposed upon a party using the language the liability of having it interpreted most strongly against him; but the weight of authority now seems to favor that construction which shall accord with the apparent intention of the parties in conformity with the rule governing the...