Newcomb Brothers Wall Paper Company v. Emerson

• Decision Date: 29 April 1897
• Docket Number: 2,160
• Citation: 46 N.E. 1018,17 Ind.App. 482
• Parties: NEWCOMB BROTHERS WALL PAPER COMPANY v. EMERSON
• Court: Indiana Appellate Court

46 N.E. 1018

17 Ind.App. 482

NEWCOMB BROTHERS WALL PAPER COMPANY v. EMERSON

No. 2,160

Court of Appeals of Indiana

April 29, 1897

From the Whitley Circuit Court.

Reversed.

T. R Marshall, W. F. McNagny and P. H. Clugston, for appellant.

Andrew A. Adams, for appellee.

OPINION

HENLEY J.

Appellant was the plaintiff below, and began this action against appellee by complaint in three paragraphs. The full text of the complaint is as follows:

"1st Paragraph. The plaintiff, a corporation duly organized under the laws of the state of Missouri, complains of the defendant, and says: That upon the 22d day of December, 1892, the defendant entered into a written contract of suretyship with the plaintiff, by the name of Newcomb Brothers, as follows, to-wit:

""SOUTH WHITLEY, IND., Dec. 22, 1892.

NEWCOMB BROTHERS, St. Louis, Mo.

Gentlemen: R. E. Emerson, of Pueblo, Colorado, desires to make purchases from your firm. I will engage to secure sales you make to the above named, in the sum of three hundred dollars. M. B. EMERSON."

"That subsequently to the entering in of said contract of suretyship, and upon the faith and credit thereof, and upon no other or different consideration unto the plaintiff moving, the plaintiff sold and delivered to said R. E. Emerson, goods, wares and merchandise of the value of $ 300.55; for the said goods, wares and merchandise said R. E. Emerson has never paid; that the said R. E. Emerson is hopelessly and notoriously insolvent; that plaintiff, before the commencement of this suit, has demanded said sum of $ 300.00 of the defendant; and that the defendant has failed, neglected and refused to pay the same. Wherefore, plaintiff prays judgment in the sum of $ 350.00, and for all proper relief.

"2d Paragraph. And, for a further and second paragraph of complaint, plaintiff complains of the defendant, and says: That the plaintiff is a corporation duly organized under the laws of the state of Missouri; that as guarantor for one R. E. Emerson on the 22d day of December, 1892, the defendant entered into the following contract of guaranty with the plaintiff, under the name of Newcomb Brothers, to-wit: [Here is inserted a copy of the letter as set out in the first paragraph.] That upon the faith and credit of said contract of guaranty, and upon no other or different consideration unto it moving, the plaintiff did thereafter sell and deliver to the said R. E. Emerson goods, wares and merchandise of the value of $ 300.00; that subsequently, the said R. E. Emerson became insolvent, and before he had paid for the said goods, wares and merchandise so sold and delivered to him by the plaintiff, as aforesaid; that, immediately upon such insolvency becoming known to the plaintiff, it notified the defendant of the fact of his insolvency, to-wit: on or before the 1st day of July, 1893, by reason whereof a cause of action has accrued to the plaintiff. Wherefore, plaintiff demands judgment," etc.

"3d Paragraph. The plaintiff, a corporation duly organized under the laws of the state of Missouri, for a third and further paragraph of complaint, complains of the defendant, and says: That upon the 22d day of December, 1892, the defendant entered into a written contract with the plaintiff, by the name of Newcomb Brothers, as follows, to-wit: [Here is set out the letter as appears in the first paragraph]; that subsequently to the entering into of said contract, and upon the faith and credit thereof, and upon no other or different consideration unto the plaintiff moving, the plaintiff sold and delivered to said R. E. Emerson, goods, wares and merchandise of the value of $ 300.55, for which said goods, wares and merchandise the said R. E. Emerson has never paid; that said R. E. Emerson is hopelessly and notoriously insolvent; that upon learning of the insolvency of R. E. Emerson, plaintiff herein notified defendant herein of that fact, and received from him the following acknowledgment of his promise and contract aforesaid, and the ratification of the sale made by them to the said R. E. Emerson, to-wit:

""SOUTH WHITLEY, IND.

NEWCOMB BROTHERS, St. Louis, Mo.

Dear Sirs: Received yours of the 26th inst., notifying me of the failure of R. E. Emerson, of Pueblo, Colorado. Had learned of the failure some time ago, and that they were trying to make you safe by attachment on the goods, which I suppose has failed. Will write R. E. Emerson to-day and learn the situation; and if the account cannot be made of them, I will arrange to meet the amount vouched for, $ 300.00.

Yours truly, M. B. EMERSON."

"That, before the commencement of this suit the plaintiff demanded the said sum of $ 300.00 of the defendant; and that the defendant has failed, neglected and refused to pay the same. Wherefore, plaintiff prays judgment in the sum of $ 350.00 and all proper relief."

Appellee demurred to each paragraph of the complaint, which demurrer was sustained; and, appellant refusing to plead further, judgment was rendered against it for costs.

The only errors assigned relate to the ruling of the lower court in sustaining the demurrer to the various paragraphs of the complaint. The first paragraph of the complaint proceeds upon the theory that appellee is the surety of R. E. Emerson for $ 300.00. The second paragraph proceeds upon the theory that, by the written instrument therein set out, appellee became the guarantor for R. E. Emerson for the amount of $ 300.00. The third paragraph sets out the written instrument by which the appellant seeks to make appellee liable, and further alleges a written ratification by the appellee of the sales made thereunder, and an additional promise to pay.

The question now arises as to what effect shall be given to the instrument of writing upon which each paragraph of the complaint is based.

We shall not go extensively into a discussion of the different relations assumed by guarantors and sureties, or digest the cases which attempt to draw a line of distinction between contracts of suretyship and guaranty, and of the different classes of each. This...