Rathbone, Sard & Co. v. Frost

• Decision Date: 13 June 1894
• Citation: 9 Wash. 162,37 P. 298
• Court: Washington Supreme Court
• Parties: RATHBONE, SARD & CO. v. FROST.

37 P. 298

9 Wash. 162

RATHBONE, SARD & CO. v. FROST.

Supreme Court of Washington

June 13, 1894

Appeal from superior court, Thurston county; Emmett N. Parker Judge.

Action by Rathbone, Sard & Co., a corporation, against Robert Frost on a contract of guaranty. Judgment for plaintiff. Defendant appeals. Reversed.

W. I. Agnew, for appellant.

Richards Murray & Pratt and Robinson & Linn, for respondent.

DUNBAR C.J.

The complaint in this case alleges that on the 30th day of August, 1888, at the city of Olympia, territory of Washington, the defendant, in consideration of the sum of one dollar, to him in hand paid by the plaintiff, did, in writing, guaranty the payment at maturity to plaintiff of any and all bills of merchandise which the plaintiff might from time to time thereafter sell to George L. Jones upon such credits as might be agreed upon between the plaintiff and the said Jones, and without requiring any demand or notice of default; that the defendant's liability was by said writing limited to $500; that plaintiff afterwards, and prior to October 12, 1891, and on the faith of said guaranty, sold and delivered to said George L. Jones merchandise, consisting of hardware, to the full amount of $500, the purchase price of which, according to the terms of sale, was payable on delivery of the goods; further alleges demand of payment of Jones, and refusal by him to pay the same, and demands judgment against the defendant on his guaranty for $500, and costs of the action. The answer, among other things, alleges that some time shortly prior to the 30th day of August, 1888 the agent of plaintiff called upon the appellant, representing that he had sold to said Jones a bill of merchandise of the value of $500, and desired the appellant to guaranty payment of the same; that thereupon said agent drew up a guaranty to that effect, and appellant signed and delivered the same; that appellant's liability was limited in said instrument to the sum of $500 for goods already purchased by Jones of said respondent; that thereafter, on or about August 30th, appellant received by mail from the respondent another paper, accompanied by a letter of transmittal, wherein respondent represented to appellant that it desired his guaranty to be upon the form which it usually used, and desired him to sign the form inclosed and return the same to it, and represented that such new guaranty was simply for the purpose of carrying out the original agreement and contract signed by the appellant; that, trusting and relying upon said representations, without paying any attention to the form inclosed, appellant signed the new agreement, and forwarded it to respondent, which said second instrument is the same set forth in plaintiff's complaint; and alleges further that it was well understood and agreed by and between respondent and appellant that the original contract or guaranty was to be in no way modified, extended, or enlarged, and that the bill of goods ordered by Jones to the amount of $500, and for which the appellant became liable, had been wholly paid, and that thereupon the liability of defendant ceased.

Upon the trial of the cause, the appellant offered evidence tending to show the character of the first guaranty and the circumstances under which the second guaranty was executed. The testimony offered was as follows: "That the guaranty sued upon in this action was substituted for the original guaranty given by him, in which his liability was limited to five hundred dollars. That the guaranty upon which suit is brought was given by Mr. Frost under the following representation, by inclosing the same by letter: 'Aug. 25, 1888. Robert Frost, Olympia, Wash Ter.-Dear Sir: We are in receipt of an order from our Mr. Traphagen for stoves, to be shipped to Geo. L. Jones, of your place, and we are also in receipt of your guaranty for the account of Mr. Jones up to $500. We would much prefer that you make out this guaranty on one of our blanks, which we inclose herein for your signature. We will hold the guaranty which we received through Mr. Traphagen until we receive this from you, when we will return it to you. There is but little difference in the blanks, but we prefer to have our own regular forms for our account, in order to make everything more...