Page v. White Sewing-Mach. Co.

• Decision Date: 21 December 1895
• Parties: PAGE et al. v. WHITE SEWING-MACH. CO.
• Court: Texas Court of Appeals

34 S.W. 988

PAGE et al. v. WHITE SEWING-MACH. CO.

Court of Civil Appeals of Texas.

December 21, 1895.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by the White Sewing-Machine Company against W. S. Page and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Poindexter & Padelford, for appellants.

LIGHTFOOT, C. J.

The appellee sued appellants, August 22, 1889, upon the following bond, which was duly signed and executed by W. S. Page, G. G. Towles, W. P. Epperson, and W. H. Niles: "Know all men by these presents, that we, W. S. Page and G. G. Towles and W. P. Epperson and W. H. Niles, are held and firmly bound, severally and individually, unto the White Sewing-Machine Company, in the sum of one thousand dollars, lawful money of the U. S. of America, to be paid to the White Sewing-Machine Company, their representatives or assigns, for which payment (together with ten per cent. thereon in case of suit upon this bond), well and truly to be made, they bind themselves, their heirs, executors, administrators, and separate estate, jointly and severally, firmly by these presents. Sealed with their seals. Dated the March 12th, one thousand eight hundred and eighty-six. The conditions of the above obligation are such that if the above-bounden W. S. Page, his heirs, executors, or administrators, shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may hereafter, in any manner, exist or be incurred, on the part of the said W. S. Page, to the White Sewing-Machine Co. or its assigns, whether such indebtedness or liability shall exist in the shape of book accounts, notes, or leases, renewals or extensions of notes, accounts, leases, acceptances, indorsements, consignments of property or merchandise, failure to deliver or account for same, or any part thereof, or otherwise, and whether same shall be waived under any contract between said White Sewing-Machine Company and said W. S. Page, or otherwise, and whether same shall arise out of the purchase and sale of sewing machines, or otherwise, hereby waiving presentment for payment, notice of nonpayment, protest and notice of protest, and diligence, upon all notes, accounts, or leases now or hereafter executed, indorsed, transferrred, guarantied, or assigned by the said W. S. Page to the White Sewing-Machine Company, its agents or assigns, then this obligation shall be null and void, but otherwise to be and remain in full force and effect. Each one signing this bond is bound according to the purport of it, without regard to any understanding that any person should also sign this instrument, and the person to whom this is intrusted has absolute authority to deliver it, and the same is made and shall be construed without reference to any other instrument or agreement whatsoever. It is further understood, and the undersigned hereby agree and consent, that the White Sewing-Machine Company or its agents may, in their discretion, take and receive from said W. S. Page any security whatsoever, mortgage, personal or other property, at any time or times, and grant any extension to said W. S. Page, without in any way affecting the liability of the signers hereto, or either of them, from the obligations of this bond." The above bond was made an exhibit to the petition. W. P. Epperson and W. H. Niles, being nonresidents and insolvent, were not sued. The petition alleged a breach of the bond, in that W. S. Page, the principal in the bond, became indebted to plaintiff by the purchase of sewing machines under his contract, and that judgment had been obtained against him for $4,449.24 therefor, which he had failed and refused to pay. Plaintiff set out various claims, and prayed for judgment on the bond, and for 10 per cent. attorney's fees, and for general relief. December 2, 1893, the appellants, W. S. Page and G. G. Towles, filed their second amended answer, consisting of a general denial, a plea of res adjudicata by W. S. Page, a plea in the nature of non est factum by G. G. Towles; that said contract was signed by him upon a condition which was never fulfilled; that no notice of the acceptance of same was ever given him by plaintiffs, etc.; that defendant G. G. Towles is released by reason of plaintiff's having failed to notify him of the default of defendant Page; and that the contract was changed, and additional credit given said Page, in 1888, whereby the defendant G. G. Towles was released, etc. December 2, 1893, plaintiff filed its first supplemental petition in reply to defendant's said answer, alleging that, by reason of the terms of the contract sued upon, defendant Towles was estopped from setting up said defenses contained in his second amended answer. On December 3, 1893, the case was tried by a jury; and in accordance with the instructions of the court the jury returned a verdict in favor of plaintiff and against defendants for $1,000, with interest at the rate of 6 per cent. per annum from August 22, 1889, until the trial, and 10 per cent. as attorney's fees, upon which judgment was rendered, and defendants appeal.

The above bond of appellant W. S. Page was introduced in evidence, and it was fully shown that he was indebted to appellee as alleged in its petition. Appellants have ably presented the case, from their standpoint; but appellee has filed no brief, or appeared in this court, and we have had no aid whatever from that side in the investigation of the important questions considered.

Under appellants' fifth, sixth, and seventh assignments of error, they complain of the ruling of the court in excluding the testimony of appellant G. G. Towles, by which he attempted to show that appellee had no cause of action against him, because, when he signed the bond, he did so on condition that the contract of W. S. Page should be extended to other counties, and additional credit given him, and that he (Towles) should be notified of the fact, and that the bond never became a binding obligation upon him. The bond, which was signed by the witness Towles as a surety, provides on its face that "each one signing this bond is bound according to the purport of it, without regard to any understanding that any person should also sign this instrument, and the person to whom this is intrusted has absolute authority to deliver it, and the same is made and shall be construed without reference to any other instrument or agreement whatsoever." The instrument was delivered, the territory of W. S. Page was extended, and his line of credit enlarged. Under such facts, did the court err in excluding the oral testimony of G. G. Towles, by which he sought to evade the terms of the written contract by a parol understanding? We think not.

It is further contended by appellants that the court erred in excluding the testimony offered by appellant Towles tending to show that, if he had known of the default of his principal, he could have saved himself harmless by getting additional security, but the company gave him no notice. Appellants insist upon treating the contract as one of strict legal guaranty. We cannot so regard it. It is a plain bond, executed by W. S. Page to the appellee, with G. G. Towles and others as securities. The contract is between the appellee, on the one side, and W. S. Page as principal, and Towles and others as sureties, on the other. The difference between a contract of guaranty and one of suretyship is not always clearly marked or well defined. In And. Law Dict. p. 497, the difference is thus stated: "A contract of suretyship is a direct liability to the creditor for the act to be performed by the debtor, whereas a guaranty is a liability only for his ability to perform this act. A surety assumes to perform the contract for the principal debtor, if he should not. A `guarantor' undertakes that his principal can perform; that he is able to perform. The undertaking of a surety is immediate and direct,—that the act shall be done, and, if not done, then he is to be responsible at once; but, from the nature of the undertaking of a guarantor, nonability (insolvency) must be shown." "A guarantor insures the solvency of the debtor A surety insures the debt itself. A surety must demand proceedings, with notice that he will not continue bound unless they are instituted, whereas a guarantor may rely upon the obligation of the creditor to use due diligence to secure satisfaction of his claim." Reigart v. White, 52 Pa. St. 438; Kramph v. Hatz, Id. 525. Mr. Brandt, in his work on Suretyship and Guaranty (section 1), thus states the...