Lehigh Coal & Iron Company v. Scallen
| Decision Date | 07 May 1895 |
| Docket Number | 9159--(36) |
| Citation | 63 N.W. 245,61 Minn. 63 |
| Parties | LEHIGH COAL & IRON COMPANY v. E. F. SCALLEN and Another |
| Court | Minnesota Supreme Court |
Appeal by defendants from an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial. Affirmed, as to defendant E. F. Scallen. Reversed, as to defendant J. C. Scallen.
Freeman P. Lane, and William H. Briggs, for appellants.
J. B Phelps, for respondent.
The defendant E. F. Scallen was in the retail fuel business. The plaintiff corporation was in the wholesale fuel business. He desired to purchase wood and coal of it on credit, and procured his brother, J. C. Scallen, to make and deliver to plaintiff, at the time of its date, the following guaranty:
On the faith of this guaranty, plaintiff sold fuel to E. F. Scallen on credit, on a running account, thereafter until April 1 1893, the amount of such sales being $ 10,203, of which the sum of $ 8,901, was paid, leaving a balance due of $ 1,302. This action is brought against E. F. Scallen, as principal debtor, and against J. C. Scallen, as such guarantor, to recover said balance due. At the close of the trial the court ordered a verdict for plaintiff for the full amount claimed, and from an order denying their motion for a new trial defendants appeal, but no grounds for reversal as to defendant E. F. Scallen are urged.
It is contended that the court erred in ordering a verdict against J. C. Scallen, for the reason that he was entitled to notice that his guaranty had been accepted by the plaintiff before the contract could be complete, or he be held liable on the same; citing Winnebago Paper Mills v. Travis, 56 Minn. 480, 58 N.W. 36. The point would be well taken if J. C. Scallen had merely made an offer of guaranty, to which he had never received any response, or of the acceptance of which he had never received any notice until an unreasonable length of time after the guarantee had attempted to act on the offer so far as to furnish the proposed credit, as was the case in Winnebago Paper Mills v. Travis. This instrument of guaranty did not go out of the possession of J. C. Scallen as an unaccepted proposition. It is true that the defendants testify that J. C. Scallen delivered the instrument to E. F. Scallen, who subsequently delivered it to the agent of plaintiff when J. C. Scallen was not present. But it conclusively appears by the evidence that plaintiff had agreed to accept the guaranty and act upon it before the instrument of guaranty was written or signed. Plaintiff had agreed to sell fuel to E. F. Scallen on credit if J. C. Scallen would guaranty the account. E. F. Scallen testified that he so informed J. C. Scallen when he signed the instrument, and J. C. Scallen himself testified that before he signed it he was so informed by the agent of plaintiff. Then the signing and delivery of this instrument by J. C. Scallen was the acceptance of a proposition, not the making of a proposition, and no further notice to him of the acceptance of the guaranty was required. See the case last cited; also, Davis v. Wells, 104 U.S. 159, 26 L.Ed. 686; Wildes v. Savage, 1 Story 22, Fed. Cas. No. 17,653.
There was evidence tending to prove that there was no communication between the guarantor and guarantee from the time the guaranty was given until about July 10 in the following year. It is urged that it was a question for the jury whether or not the plaintiff gave an unreasonable amount of credit, and continued to sell an unreasonable length of time, on the faith of this guaranty, and that for these reasons it was error to take the case from the jury and order a verdict for plaintiff as against J. C. Scallen. This is a continuing guaranty, in which neither the time it shall continue nor the amount of the guarantor's liability is stated. Taking it literally, it might continue for 10, 20, or 50 years; and as it is "for any amount of credit you may see fit to give him," the guarantor might become liable under it for millions of dollars. But this is certainly not the proper interpretation of the instrument. The time it shall continue, and the...
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