Schoonover v. Osborne
Citation | 79 N.W. 263,108 Iowa 453 |
Parties | SCHOONOVER v. OSBORNE ET AL. |
Decision Date | 18 May 1899 |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Jones county; G. W. Thompson, Judge.
Action against defendants, Osborne Bros., William M. Osborne, Lewis D. Osborne, and David Osborne, on a promissory note, and for the amount of an account against Osborne Bros., William M. Osborne, and Lewis D. Osborne, which it is claimed defendant David Osborne guarantied. The action was aided by attachment, which it is claimed was levied upon all the property of the defendants. Defendants Osborne Bros., William M. Osborne, and Lewis D. Osborne pleaded usury, and also a counterclaim on the attachment bond. Defendant David Osborne denied the allegations of the petition; alleged that, if he signed the note and guaranty sued on, he was not in his right mind when he did so, and that there was no consideration therefor; and further alleged that he made no guaranty to plaintiff, but that his guaranty, if any, was to the firm of Shaw & Schoonover. He also alleged that his liability on the guaranty, if any, has been extinguished by payment of the principal obligation, and further pleaded a counterclaim on the attachment bond. On the issues thus joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $32,046.64. Defendants appeal. Affirmed in part, and reversed in part.Sheean & McCarn, M. W. Herrick, and F. O. Ellison, for appellants.
Remley, Ney & Remley and Ercanbeck & Lawrence, for appellee.
Prior to June 28, 1894, Shaw & Schoonover was a co-partnership consisting of W. T. Shaw and plaintiff, doing a banking business in the city of Anamosa, Iowa. On that day the firm was dissolved, and plaintiff purchased, and became the sole owner of, the assets of the firm. Osborne Bros. is also a co-partnership, engaged in the livery business, and in the buying and selling of stock. Its members were William M. and Lewis D. Osborne. This co-partnership had been doing business with the firm of Shaw & Schoonover for many years prior to its dissolution, and continued to do business with plaintiff thereafter, and until the commencement of this suit. The note upon which the action in part is based is for $10,000, and was executed by Osborne Bros. and David Osborne, the other defendant, on the 1st day of January, 1891. The account which is the other part of plaintiff's cause of action is for money advanced Osborne Bros. by Shaw & Schoonover, and by Schoonover individually, covering a period of years from August 5, 1882, down to August 5, 1896, and the balance claimed to be due is $17,206.31. Plaintiff seeks to charge defendant David Osborne with the payment of this account by reason of the following instrument of guaranty: The account covers interest items amounting to nearly $11,000, which it is claimed were charged from time to time upon daily balances, with the knowledge and consent of Osborne Bros. These charges were made at the rate of 10 per cent. until the legal rate by contract was changed to 8 per cent., and after that at 8 per cent. There never was any written agreement by Osborne Bros. to pay any rate per cent. as interest. The account that Shaw & Schoonover had with Osborne Bros. was never closed, but was continued after plaintiff had succeeded to the interests of his firm just as it had been prior to that date. Osborne Bros. were charged with the checks drawn on the bank, and with interest, and credited with the profits, just as if there had been no change in the membership of the banking firm. After Schoonover succeeded to the business of that firm, Osborne Bros. deposited more than $20,000, which was credited to their account. At the time of the dissolution of the firm they were indebted to it in the sum of $16,585.85, as shown by the books of the bank. Defendant David Osborne asked instructions to the effect that, if the jury found his mental condition was such at the time he signed the note and the guaranty that he did not know what he was doing, their verdict should be for him. He further requested the court to charge that he was not liable on the guaranty for money advanced by plaintiff, and that, if Osborne Bros. made payments on their account after the dissolution of the firm of Shaw & Schoonover which equaled or exceeded the amount due that firm at the time of its dissolution, their verdict should be for him, in so far as the account was concerned. Some other instructions were asked, which it is not necessary to refer to at length. The court refused these instructions, and charged the jury that plaintiff was entitled to rely on the letter of guaranty, and that David Osborne was responsible to him for the amount of his account against Osborne Bros.
As there was no evidence of David Osborne's mental incapacity, the court was right in not submitting that question to the jury. The other propositions submitted by the record are of more difficulty; and the first is, is defendant David Osborne liable to plaintiff on a guaranty made to Shaw & Schoonover? Announcement of a few elementary principles of law will help to solve this question: A contract of guaranty or suretyship is said to be strictissimi juris, and one in which the guarantor has the right to prescribe the exact terms upon which he will enter into the obligation, and to insist on his discharge if those terms are not observed. It is not a question whether he is harmed by a deviation to which he has not assented. He may plant himself on the technical obligation: Barns v. Barrow, 61 N. Y. 39; Kingsbury v. Westfall, Id. 356; Fellows v. Prentiss, 3 Denio, 512;Allison v. Rutledge, 5 Yerg. 193; Bussier v. Chew, 5 Phila. 70; Penoyer v. Watson, 16 Johns. 100. 1 Brandt, Sur. (2d Ed.) 134, 135; People v. Chalmers, 60 N. Y. 154;State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880. Again it has been said: In applying these rules the courts have usually held that a guaranty addressed to a particular party can only be acted upon and enforced by that party. See Taylor v. Wetmore, 10 Ohio, 490;Bank v. Diefendrof, 90 Ill. 396;Crane Co. v. Specht, 39 Neb. 123, 57 N. W. 1015;Penoyer v. Watson, 16 Johns. 100. Thus, in Smith v. Montgomery, 3 Tex. 199, the defendant wrote and forwarded a letter of credit, as follows: This was on the back, addressed to Smith alone. Smith and Pilgrim had been partners in business, but just a short time before had dissolved partnership. The letter on the back being addressed to Smith alone, it was delivered to him, and he supplied the goods to Tennard, who failed to make payment; and suit was brought to recover from Montgomery, his guarantor. The court, in deciding the case, says: . To the same effect, Barns v. Barrow, 61 N. Y. 39. We are aware that some courts have held that, when a guaranty is made to a house as a house, the circumstance of taking in a new partner makes no difference as to the extent of the engagement. See Pease v. Hirst, 10 Barn. & C. 122; Greer v....
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...out in his obligation, and no further." Simonson v. Grant, 36 Minn. 439, 442, 31 N.W. 861, 862. Or, as said in Schoonover v. Osborne, 108 Iowa 453, 457, 458, 79 N.W. 263, 264: "* * * the guarantor has the right to prescribe the exact terms upon which he will enter into the obligation, and t......
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