Rankin & Rankin v. Childs

• Decision Date: 31 January 1846
• Citation: 9 Mo. 673
• Court: Missouri Supreme Court
• Parties: RANKIN & RANKIN v. CHILDS.

9 Mo. 673

RANKIN & RANKIN

v.CHILDS.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM COOPER CIRCUIT COURT.

PEYTON R. HAYDEN, for Appellants. 1. In the argument of this cause the counsel for appellants will insist that the guarantee of Childs to pay for the building materials which were sawed and furnished by plaintiffs to McCourtney, as therein and thereby specified, was and is a direct unconditional and positive undertaking on his part, and not a collateral or conditional one; and that the plaintiffs to sustain their action were only bound to prove the making of the guaranty, and the delivery of the materials to McCourtney, mentioned in the bill therefor, as made out by Childs; and that it was not necessary for plaintiffs to prove that they had given Childs notice prior to the commencement of their suit, that they had furnished said materials to McCourtney. 2. That if it were necessary to prove that plaintiffs had given notice to Childs, that they had furnished and delivered to McCourtney said building materials, and mentioned in the bill therefor, and that McCourtney had not paid them therefor, yet the court erred in giving to the jury the instruction prayed for by defendant; because the question of notice was a fact for the decision of the jury, and upon which plaintiffs had given evidence, from which the jury might, and ought to have found that fact, if they had been permitted to have decided it.

STUART & MILLER, for Appellee. 1. The appellee will insist that the evidence in the cause was insufficient to entitle the plaintiffs to a verdict against the defendant, Childs (now sole and surviving defendant), and who could only have been made responsible to plaintiffs, as the guarantor of his original co-defendant, McCourtney. 2. That as the defendant, Childs, was only responsible in the capacity of guarantor, and as his offer to guaranty was made prior to the sale and delivery of the lumber by the plaintiffs to McCourtney, it was necessary in order to charge the defendant, Childs, that the plaintiffs should have given him reasonable notice of their acceptance of his guaranty, after it was given, and before the commencement of their suit against him. 3. That in an action against a guarantor, unless his agreement to guaranty be absolute and conclusive, the plaintiff must show that he gave notice to the guarantor that he accepted it as such, and notice of the amount of the debt, and of non-payment by principal; and as no such notice was proven in this case, the court did not err in its instruction to the jury, and in overruling the plaintiff's motion for a new trial. See 2 Starkie's Ev. 371-2; Cond. R. 423-5; 5 Mo R. 504, Smith v. Anthony; 7 Cranch, 69, Russell v. Clark's Ex'r; 1 Mason's R. 323, Cramer v. Higginson and others; Russell v. Perkins, 1 Mason, 371; 7 Peters, 125, Douglass et al. v. Reynolds et al.;10 Peters, 494; 8 Pickering, 423; 24 Pickering, 350.

MCBRIDE, J.

This was an action of assumpsit, brought by William and Smith Rankin, against the defendants, Childs & McCourtney, in the Cooper Circuit Court, at the June term, 1843 The declaration contains two counts; the first for joists, plank, and other building materials, sold and delivered to the defendants, for the work and labor of the plaintiffs, done at the request of defendants, for money paid, laid out, and expended, for money had and received, and on an account stated The second count, and the one upon which the plaintiff mainly sought to recover against the defendant, Childs, set forth and alleged that the plaintiffs, at the request of McCourtney, sawed and delivered to him a large quantity of materials for the building of a ferry boat; and upon the delivery and acceptance of the said materials to the defendant, McCourtney, the said Childs and McCourtney guarantied the payment of as much money therefor as they were reasonably worth. The defendants pleaded non-assumpsit.

At the March term, 1845, the plaintiffs, having suggested the death of McCourtney, abated their suit as to him, and went to trial against the surviving defendant, Childs After the plaintiffs had closed their evidence, the defendant, by his counsel, moved the court to instruct the jury that the plaintiffs could not recover, and were not entitled to a verdict upon the evidence given in the cause. The court instructed the jury accordingly, whereupon the plaintiffs took a non-suit with leave to move to set the same aside. A motion was made by the plaintiff's attorney, to set aside the non-suit, and grant a new trial, because the court erred in giving the instruction prayed for, which being overruled the plaintiffs excepted, and have brought their case here by appeal, and seek a reversal of the judgment of the Circuit Court.

The principal question in this case arises on the instruction given to the jury by the court; and whether that instruction be correct or not, depends upon the legal import of the defendant, Childs', undertaking. In construing this transaction, as well as all others, it is the duty of the court to ascertain with as much certainty as practicable, what was the intention of the contracting parties, and to give effect to tha intention. Whenever parties may legally contract, the laws permits them to do so upon their own terms and conditions, and does not assume to make contracts for them. Neither will the courts, when their aid is invoked, undertake to vary the terms and conditions agreed upon between them.

Justice Thompson, in the case of Lee v. Dick, 10 Peters, 492, says, “A guarantee is a mercantile instrument, and to be construed according to what is fairly to be presumed, to have been the understanding of the parties, without any strict technical nicety.”

The evidence shows, that the defendant, McCourtney, desiring to build a ferry-boat for his own use, called upon the plaintiffs, who were owners of a saw-mill in the vicinity, to purchase lumber for the construction of his boat. The plaintiffs refused to credit him for the lumber, as he was a stranger to them, unless he would give them security for the payment thereof; whereupon McCourtney mentioned the name of his co-defendant, Childs, as such security, who plaintiffs said was good; that a few days thereafter McCourtney returned to the plaintiff's saw-mill, and delivered to them a written bill, purporting to be in Childs' hand-writing, specifying the building materials, &c., to be sawed and delivered by the plaintiffs to McCourtney at the place of building the boat; at the foot of the bill is the following: “Messrs. Rankins will furnish the above bill as soon as possible, and I will order what more I may want for my boat in a short time.

JAMES MCCOURTNEY.

I hereby guarantee the payment of the above bill.

Jan. 29, 1842.

WM. CHILDS.”

On the 10th February, the plaintiffs commenced the sawing, and delivery of the materials in the bill, to McCourtney, at the place of building the boat, and continued the delivery up to the 12th May, 1842, when they completed it; that during the delivery of the materials, and the building of the boat, Childs was frequently present as a visitor, taking no control or management in the matter; that during the delivery, McCourtney procured one Allen (who was the clerk of Childs in his steam-mill, situate near the place of delivery), to measure the lumber, &c., and keep an account thereof, but there was no evidence given, conducing to show that Childs knew this; that the materials, &c., furnished, when thrown into board measure, were worth two dollars per hundred feet, and that McCourtney agreed to pay that price for the same.

It may be unquestionably assumed from the foregoing facts, that the boat, for the building of which the materials were furnished, was to be built by McCourtney, and for his own use; Childs had no agency in the construction of, or interest in the boat. He acted solely in the transaction as the friend of McCourtney. McCourtney made the contract with the plaintiffs, which was conditional on their part. If McCourtney would give them Childs as security, then they would furnish him with the materials, delivered on the bank of the river, at two dollars per hundred feet. This must have been the terms of the agreement, as there is no evidence of another interview between the plaintiffs and McCourtney, prior to the making out the bill for the materials The order at the foot of the bill, signed by McCourtney, goes to show that a previous agreement as to price, and place of delivery, had been made between them.

Although Childs appears to have had no interest in the boat, yet he might bind himself jointly with McCourtney, to pay for the materials furnished, by the use of apt words for that purpose. If he had so intended, is it probable he would have used the language which he did for that purpose?

Justice Story says, in 7 Cranch, 90, “that the law will subject a man having no interest in the transaction, to pay the debt of another, only when his undertaking manifests a clear intention to bind himself for the debt.” Words of doubtful import, ought not, it is conceived, to receive that construction. It is the duty of the individual who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligation he is about to assume.

The plaintiff's attorney insists, that the terms used, “I hereby guarantee the payment,” &c., are equivalent to saying, “I hereby promise to pay,” &c. But we think there is a manifest difference in the force of the language used. The word “guarantee,” is an undertaking to do an act, or perform a duty for another, in the event of his not performing. Judge Story defines it to be, an original collateral undertaking; whereas, the other is a direct, positive and unconditional promise to pay. If Childs had intended to bind himself jointly as principal in the contract, it is remarkable that he used the language which he did. The use of the word...