Lininger & Metcalf Co. v. Wheat

• Decision Date: 05 November 1896
• Citation: 68 N.W. 941,49 Neb. 567
• Court: Nebraska Supreme Court
• Parties: LININGER & METCALF CO. v. WHEAT.

49 Neb. 567

68 N.W. 941

LININGER & METCALF CO.

v.WHEAT.

Supreme Court of Nebraska.

Nov. 5, 1896.

Syllabus by the Court.

1. A guarantor, as a condition precedent to his liability, is not entitled to notice of the acceptance of a guaranty in the following form: “The undersigned does hereby guaranty the faithful and full performance by the party of the second part to the contract of all the agreements and engagements therein entered into by the party of the second part.”

2. The neglect to notify the guarantor of the default of his principal does not operate to discharge the guarantor unless such neglect is, on its face, unreasonable in view of all the circumstances of the case.

3. A consideration sufficient to sustain a guaranty of the faithful performance of the undertakings of the principal exists when the party for whose protection the guaranty was executed has extended credit to the principal on the faith of such guaranty.

Error to district court, Adams county; Beall, Judge.

Action by the Lininger & Metcalf Company against George T. Wheat on a contract of guaranty. From a judgment for defendant, plaintiff brings error. Reversed.Smith & McCreary, for plaintiff in error.

Capps & Stevens, for defendant in error.

RYAN, C.

This action was brought in the county court of Adams county by the plaintiff in error on April 20, 1893. From a judgment for the sum of $391.70 the defendant appealed to the district court, wherein judgment was rendered on the verdict of a jury in his favor. On the 12th day of February, 1892, plaintiff, Lininger & Metcalf Company, entered into a written agreement with W. H. Shellhammer whereby Mr. Shellhammer was appointed its agent for the sale of certain of its goods at Holstem and Norman. Among other undertakings of this agent under his agreement, he was to be liable to the company for any damages that goods might sustain by reason of not being properly stored. It was also stipulated in the agreement that for such goods as should not have been ordered away and remained unsold on January 1, 1893, Mr. Shellhammer was to be liable to pay the cash value, if so required by the company. This action was for the balance alleged to be due under the above provisions, and was brought against the defendant in error on this, his guaranty, which was indorsed on the aforesaid written agreement: “Guaranty. For value received, the undersigned do hereby guaranty the faithful and full performance by the party of the second part to this contract of all the agreements and engagements therein entered into by the said party of the second part. Witness hand and seal the day and date within written. [Signed] George L. Wheat.” On the trial there was introduced as evidence on behalf of Mr. Wheat a stipulation entitled as in this case, and dated...