Kelly-Springfield Tire Co. v. Hamilton

• Decision Date: 02 March 1936
• Docket Number: No. 18528.,18528.
• Citation: 91 S.W.2d 193
• Parties: KELLY-SPRINGFIELD TIRE CO., APPELLANT, v. ANNE HAMILTON ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

91 S.W.2d 193

KELLY-SPRINGFIELD TIRE CO., APPELLANT, v. ANNE HAMILTON ET AL., RESPONDENTS.

No. 18528.

Kansas City Court of Appeals. Missouri.

March 2, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

AFFIRMED.

Gilmore, Brown & Gilmore for appellant.

Ayers Blocher for respondents.

SHAIN, P.J.

This is a suit on account against a debtor and an alleged guarantor.

The plaintiff, the Kelly-Springfield Tire Company, is shown to be a New York Corporation, successor to the Springfield Tire Company of New Jersey.

For some years prior to July 6, 1932, the New Jersey Corporation was licensed to and was doing business in Missouri and had an office in Kansas City, Missouri. On the above date, the New Jersey Corporation filed affidavit of retirement from Missouri.

On or about March 10, 1932, the defendant Steiguer executed a written guaranty agreement to the New Jersey Corporation that was then licensed to and was doing business in Missouri.

The matters concerned in this appeal are based upon the guaranty which is as follows, to-wit:

"Kelly-Springfield Tire Company "Guaranty

"In order to induce the Kelly-Springfield Tire Company (hereinafter referred to as the `Company') to extend credit to Hamilton Tire Company, Anne Hamilton, Prop., 1935 Baltimore Ave., Kansas City, Mo. (hereinafter referred to as the `Customer'), and in consideration thereof and the sum of one dollar ($1.00) and other valuable considerations, the receipt of which is hereby acknowledged, the undersigned (hereinafter referred to as the `Guarantor') does hereby guarantee to the Company the full and prompt payment at maturity of all bills and invoices that the Company has now rendered or may hereafter render against the Customer, and of all checks, drafts, notes, acceptances and renewals thereof given on account of or in payment of the same by whomsoever executed.

"In the event of the failure of the customer and/or any other person who executes same, to pay or cause to be paid any such check, draft, note, or acceptance in accordance with the tenor thereof, in whatever form payable by the Customer to the Company, or in the event of the failure of the customer to pay any bill or invoice of any amount, when due and matured, the Guarantor agrees to pay promptly the same upon demand, with the same force and effect as if the merchandise had been bought by and invoiced as to the Guarantor for his own account, and/or said check, draft, note or acceptance had been given or made directly by the Guarantor, it being agreed that the liability of the Guarantor hereunder is a primary obligation. * * *

"The Guarantor hereby agrees that the whole of his agreement with the Company is herein set forth and that there is and can be no verbal or other written contract, agreement, understanding or custom whereby the terms and conditions of this guaranty have been or can be affected, changed, varied, interpreted, construed, modified or waived in any manner whatever unless set forth in writing signed by the Company by its General or Assistant General Credit Manager and endorsed on this agreement itself; and any separate verbal or written agreement with the Company's salesmen or others which are or shall be at variance with this agreement are not and shall not be binding upon the Company. The Guarantor hereby acknowledges that at the time of the execution and/or delivery of this agreement there are not existent any conditions precedent, concurrent, or subsequent whatsoever, affecting, impairing, modifying or changing in any manner or way the obligations of the Guarantor to the Company hereunder, or the immediate taking effect of this guaranty as the sole agreement between the Guarantor and the Company with respect to guaranteeing the customer's obligations to the Company.

"This agreement is delivered at the office of the Company at New York City, N.Y., U.S.A., and shall be deemed to have been made at New York City and shall be construed pursuant to the Laws of the State of New York and is binding upon the Guarantor, his executors, administrators, and legal representatives, and shall inure to the benefit of the Company, its successors and assigns. * *...