Shumate v. Heller
Citation | 13 S.C. 94 |
Decision Date | 21 February 1880 |
Docket Number | CASE No. 817. |
Court | United States State Supreme Court of South Carolina |
Parties | DUNCAN & SHUMATE v. HELLER. |
OPINION TEXT STARTS HERE
1. A written offer to guarantee the debt of another in consideration of forbearance to the principal debtor, is not a complete contract, nor binding upon the writer until notice of acceptance is given to him, even though forbearance is afterwards granted. Thomas v. Croft, 1 Strob. 40.
2. Notice of acceptance by the creditor to the debtor, who delivers the letter of guaranty, is not notice to the guarantor, there being no proof of agency.
Before ALDRICH, J., Greenville, July, 1879.
The case is stated in the opinion of the court. One of the plaintiffs testified that Elizabeth Heller brought the letter to him from her brother at a time when witness was about to foreclose his mortgage; that he told her he would accept the proposition and grant the time asked for, which he did; that in consequence of this letter he forbore to foreclose his mortgage, and that the indulgence would not have been granted but for this letter; that in consequence of the subsequent depreciation of real estate he had lost his debt.
Verdict was for plaintiffs. Defendant, J. B. Heller, appealed.
Mr. A. C. Garlington, for appellant, relied upon Pars. on Cont. 448-450; 1 Chitty on Cont. 15, 16; Thomas v. Croft, 1 Strob. 40.
Mr. W. E. Earle, contra.
The letter is a clear undertaking to pay the debt. Chitty on Cont. 86. The intention is clear, and that is sufficient. 2 Pars. on Cont. 5; 2 S. C. 414. If any ambiguity, the construction must be most strongly against maker. Chitty on Cont. 98; 8 Port. 497; 5 Rep. 7, b; Plowd. 287; 19 Vt. 202; 3 B. & P. 399; 9 East 15; 6 Bing. 244; 3 M. & P. 136. The letter is to be understood as the other party had a right to understand it. 11 Vt. 493;31 N. Y. 294. In the construction of an instrumentthere is no difference between guarantor and principal. 13 N. Y. 232. Whether the plaintiffs accepted was left to the jury, and their verdict is final. Acceptance is necessary, but notice is not, where a debt already existing is secured and notice is not asked for. 2 Pars. on Cont. 14; 24 Wend. 35;6 Hill (N. Y.) 543. But notice was given to the debtor, who, by bearing the letter to the plaintiffs, became her brother's agent. As to what constitutes a guaranty, and as to acceptance and notice, see 2 S. C. 414;1 Strob. 40.
The opinion of the court was delivered by
The plaintiffs by this action sought to charge the appellant, J. B. Heller, as guarantor, by virtue of a letter of which the following is a copy:
“NEWBERRY, S. C., February 9th, 1877.
“J. B. HELLER.”
There was no evidence that J. B. Heller had ever been notified by the plaintiffs of their acceptance of his offer to guarantee the payment of the note of Elizabeth Heller, if indeed the terms of the letter be regarded as sufficient to amount to such an offer. This we think was fatal to the plaintiffs' case. While there may be a contrariety of decisions as to the necessity for notice of acceptance of a guaranty, we think the rule adopted by Parsons in his work on Contracts, vol. II., p. 14, is the correct one, viz., that every guarantor is entitled to notice of the acceptance of his guaranty, unless the transaction is such that of itself it gives him the requisite notice. Here, putting a construction upon the terms of the letter most favorable to the plaintiffs' case, it is very obvious that it was not an absolute and complete guaranty, but only an offer to guarantee upon condition that the plaintiffs would wait with the principal debtor until the fall. Until that offer was accepted the contract was not complete and the defendant incurred no liability. The fact that forbearance was in fact exercised cannot alter the case. The forbearance which...
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