Loverin v. Bumgarner.
| Citation | 59 W.Va. 46 |
| Court | Supreme Court of West Virginia |
| Decision Date | 13 February 1906 |
| Parties | Loverin & Browne Company v. Bumgarner. |
The following written guaranty made by J. H. B. to L. & b. Co, for the benefit of his infant son H. B. viz: ' Held: to be a guaranty of payment absolute and unconditional, upon which a suit may be commenced against the guarantor without any previous suit against the principal. (p. 54.)
When the terms of a guaranty of payment fix the time within which the payment shall be made, if the payment is not made within the time prescribed there is a breach of the guaranty and no steps need be taken against the principal, nor need his insolvency be shown in order to charge the guarantor. (p. 52.)
The genuineness of a letter is sufficiently established to permit its introduction in evidence when it is shown that it was received in clue course of mail in response to a letter sent to the supposed writer. (p. 61.)
And, upon notice having been given to such writer to produce the original of the letter to which his was a reply and his failure to produce such original, a letter press copy thereof is admissible in evidence. (p. 61.)
The admission of incompetent evidence over objection will not reverse a judgment when it is clear that such error could have worked no prejudice to the exceptor. (p. 63.)
Syllabus point 4, Dix v. Robinson, 18 W. Va. 528, and point 1 syllabus, Maxwell v. Burbridge, 44 W. Va. 248, approved. (p. 64.)
Error to Circuit Court, Wirt County.
Action by the Loverin & Browne Company against J. H. Bumgarner. Judgment for plaintiff, and defendant brings error.
Affirmed.
T. A. Brown and D. C. Casto, Jr., for plaintiff in error. F. T. Lockhart and W. N. Miller, for defeudant in error.
McWhorter, President:
This is an action of assumpsit brought by the Loverin & Browne Co., a corporation, against J. H. Bumgarner in the circuit court of Wirt county upon two guaranties in writing, the first in the following words:
The second, without date, but made in August as appears from the record, is in addition to the former, and is as follows:
Plaintiff filed with its declaration a bill of particulars showing that it had sold in all under said guaranties to Harry Bumgarner goods to the amount of $2,001.97 and had been paid by said Bumgarner $1,312.46, leaving a balance due as claimed of $681.51, which bill of particulars was duly sworn to and the defendant notified that the plaintiff would rely upon the said stated account as its bill of particulars upon the trial of the action.
The defendant filed his counter affidavit that he believed there was no sum due from him to the plaintiff upon said demands stated in plaintiff's declaration and entered his plea of non-assumpsit. The defendant also tendered his special plea that the plaintiff ought not to have or maintain his said action against him, because he says that the contract which the plaintiff was seeking to enforce against him was one in which the defendant was a guarantor for Harry Bumgarner who was the alleged principal; that said Harry Bumgarner was the principal in said contracts and that defendant was only guarantor for said principal; that at the time of the making of said contracts and promises and undertakings the said Harry Bumgarner was an infant under the age of twenty-one years, and that for further plea defendant says that the several bills and articles of goods, wares and merchandise mentioned in plaintiff's declaration alleged to have been sold and delivered to said Harry Bumgarner, he, the said Harry Bumgarner, was an infant and that said goods, wares and merchandise were not necessaries for the said infant. Plaintiff took issue upon said plea and at the October term, 1904, of said court plaintiff by leave of court withdrew its reply to the special plea filed and moved the court to strike out said special plea, which motion was sustained and the said special plea stricken out, to which ruling the defendant objected and excepted. The defendant then tendered a second special plea, which was filed over the objections of the plaintiff, to which ruling plaintiff excepted. Said special plea was to the effect that the contract upon which the plaintiff's action was based was a contract of guaranty that Harry Bumgarner, the principal, should be first required to pay the same and that plaintiff should have exhausted its remedy against him before looking to the guarantor; that plaintiff had been negligent in not pursuing its remedy against Harry Bumgarner and that Harry Bumgarner was solvent at the time of making the said accounts and at the time of the institution of the action against defendant, and that if Harry Bumgarner was insolvent he had become so since default made in the payment of the said claim, to which plea plaintiff replied generally.
On the 8th of February, 1905, a jury was sworn in the case and not being able to agree upon a verdict were discharged. On the 10th of May, 1905, another jury was empanelled and sworn, and after hearing all the evidence and the arguments of counsel and the instructions of the court returned a verdict for the plaintiff assessing the damages at $630.99. The defendant then moved the court to set aside the verdict and grant him a new trial on the ground that the verdict was contrary to the law and the evidence, which motion was overruled by the court and judgment entered upon said verdict.
4 In the progress of the trial the defendant took several bills of exceptions, which were signed, sealed and saved to the defendant. The case was brought to this Court upon writ of error and supersedeas.
The first cause of error assigned is in overruling the motion of defendant to set aside the verdict of the jury and grant him a new trial. This assignment will be disposed of in connection with other assignments hereinafter treated relative to the admission of testimony objected to by the defendant.
The second assignment is that the court erred in giving to the jury Instructions Nos. 1, 3, 4, 5 and 6 asked for by the plaintiff and set out in bill of exceptions No. 5; and the third assignment in refusing to give to the jury defendant's instruction No. 2 as set out in bill of exceptions No. 6. These instructions involve the character and effect of the two written guaranties made by the defendant J. H. Bumgarner and filed with the plaintiff's declaration. The plaintiff's instructions as set out in bill of exceptions No. 5 are to the effect that if the jury should believe from the evidence that the defendant signed and executed to the plaintiff the guarantee contracts sued upon and shown in evidence, and that upon the faith of such guarantees Harry Bumgarner or H. Bumgarner obtained the goods sued for from plaintiff and did not pay for some of the same within ten days thereafter as provided for in said contracts, then the defendant became at once liable to pay for the said goods up to the limit of his guarantee contracts and plaintiff was not bound to first pursue the principal before instituting this suit on said guarantee contracts and should find for the plaintiff the value of all such goods as they should find from the evidence had not been paid for by the principal within such limits. These instructions are given on the theory that the guaranties sued upon are unconditional guaranties for the payment of the money for Harry Bumgarner within ten clays after the delivery of the goods to said Harry Bumgarner on the default or failure of the principal to pay the same. Harry Bumgarner was the infant son of the defendant, J. H. Bumgarner, who was anxious to start him in business and for that purpose made the guaranties sued upon in this case. The goods furnished to Harry Bumgarner under these guaranties were...
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