Johnson v. Bailey

• Decision Date: 03 February 1891
• Citation: 15 S.W. 499
• Parties: JOHNSON <I>et al.</I> v. BAILEY <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 499

JOHNSON et al. v. BAILEY et al.

Supreme Court of Texas.

February 3, 1891.

Appeal from district court, Brazos county.

J. D. Thomas, for appellants. A. C. Brietz, for appellees.

STAYTON, C. J.

Appellees sued C. W. Taylor and appellants upon the breach of a written contract of guaranty set up in their petition, whereby appellants were alleged to have guarantied to appellees the safe return, or their value, of samples intrusted by the appellees to Taylor as salesman or drummer. Appellees recovered judgment against Taylor, and against appellants as his guarantors, for the sum of $621.15, with 8 per cent. interest per annum thereon from and after the 20th day of August, 1888. The petition alleged that Taylor entered the service of plaintiffs as a salesman, solicitor, or drummer on January 27, 1885, and that he so continued to serve them until about May 1, 1888, and that on December 31, 1887, plaintiffs delivered to him samples of the reasonable value of the sum sued for, which he had failed to return or to pay for. The samples were actually sent out in the months of June, July, August, and September, 1887, for the fall trade of that year. The contract of guaranty, executed by defendants, was as follows: "For and in consideration of one dollar to ____, in hand paid by Joel J. Bailey & Co., (the receipt of which is hereby acknowledged,) ____ hereby guaranty to them at all times the safe return, or their value, of any and all samples that may be intrusted by the said Joel J. Bailey to Charles W. Taylor: provided, however, that liability hereunder shall not exceed the sum of one thousand dollars. This guaranty to be an open and continuous one at all times to the amount of one thousand dollars, until revoked by us in writing. And it is understood and agreed that any and all samples delivered to the said Charles W. Taylor are upon the faith and in consideration of this agreement of guaranty. It is hereby understood that the guarantors are not to be responsible for loss of samples occasioned by fire or railroad accident. Dated at Bryan this 27th day of January, in the year of our Lord 1885." Signed by the guarantors. This instrument was made an exhibit to the petition, and was properly pleaded.

Defendants pleaded that they were not bound by it, because they were never notified of its acceptance by the plaintiffs, and the court sustained an exception to so much of the answer. It is urged that this was error. It is held that a mere offer or proposal to guaranty is not binding on the party making it until he has notice that the person to whom it is made accepts it, but, where the parties to be bound and secured have entered into a contract of guaranty, then such notice is no more necessary than in other cases in which the rights of the parties depend on contract. We cannot regard the instrument as a mere proposal to guaranty, for it bears upon its face evidence that the makers of it intended to be bound by it when delivered. It purports to be upon consideration paid by plaintiffs, "the receipt of which is hereby acknowledged;" its makers "hereby guaranty;" they recite that it "is understood and agreed;" and that "it is hereby understood." Such language is inconsistent with an intention only to make a proposal or offer to be bound. There can be no agreement, unless the minds of the contracting parties meet; and when an instrument shows that this fact has occurred, and it is shown that it was delivered, the makers of it become bound to do or not to do the act which in the instrument they agree to do or to refrain from doing. This instrument is much like that considered in Davis v. Wells, 104 U. S. 159, in which it was held that notice was not necessary. The opinion in that case discusses the question involved in this with admirable clearness. The defendants also pleaded, in effect, that the value of samples furnished Taylor before those in suit was over $1,000, and they had been paid for after appellants' liability had attached, under conditions named, and their guaranty was exhausted in amount before the goods in suit were delivered.

The court sustained an exception to so much of the answer as alleged that defendants, under their guaranty, only became liable for samples to the extent of $1,000 first furnished to Taylor, and in this we are of opinion there was no error. By the terms of the contract it was "an open and continuous one at all times, to the amount of one thousand dollars, until revoked by us in writing." Under this, the extent of liability was $1,000, but this extended to any indebtedness of Taylor arising from his failure to redeliver or pay for samples, whether or no it occurred after he had returned or paid for more than $1,000 worth. It was made in...