Klein v. Kern

• Decision Date: 01 November 1894
• Citation: 28 S.W. 295
• Parties: KLEIN v. KERN.
• Court: Tennessee Supreme Court

28 S.W. 295

KLEIN v. KERN.

Supreme Court of Tennessee.

November 1, 1894.

Appeal from chancery court, Knox county; Henry R. Gibson, Chancellor.

Action by V. Klein against Peter Kern on a written guaranty. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Yoe & Cornick, for appellant. Templeton & Cates, for appellee.

WILKES, J.

This is a bill to hold defendant liable as guarantor upon the following paper writing: "In consideration of V. Klein withdrawing his advertisement in the Weekly Sentinel, and not selling the property therein advertised to be sold at public auction on Saturday, Nov. 12th, 1892, under the deed in trust or mortgage executed by J. F. Haupt to said Klein (to all of which reference is hereby made), I guaranty that J. F. Haupt will pay to V. Klein, on account of the debt due him from Haupt, the sum of $1,000.00, together with the interest due on the whole indebtedness, as well as all expenses incurred, on or before Nov. 1, 1892. [Signed] Peter Kern." Defendant demurred to the bill, and assigned as grounds: (1) That no demand for payment had been made of Haupt, and complainant had not exhausted his remedy against him on the mortgage or deed in trust held by complainant; that no action has been taken on the same, and defendant's undertaking was not to pay any sum himself, but that Haupt, the debtor, would pay. (2) Because the guaranty is void for uncertainty in its terms and provisions. The chancellor overruled the demurrer, and defendant answered, and the cause proceeded to hearing on the proof, when the chancellor held that the defendant was liable upon the paper as an absolute guaranty for $1,000, and the interest upon the entire debt secured by the mortgage and all expense incurred to November 21, 1892, and that the instrument fixed the date of payment, as well as the date when interest and costs should cease, at November 21, 1892, and referred the cause to the master to report the amount due under the guaranty as thus construed. Report was made and excepted to, and, upon exception being sustained, was reformed, and decree rendered for $1,226.50, from which defendant prayed an appeal, and has assigned as error the action of the chancellor (1) in overruling the demurrer, and (2) in giving decree for the amount of $1,226.50.

The real points in controversy are that the guarantor fixes no date by which payment was to be made; the date fixed—November 21, 1892—being merely intended as the date at which interest...