Shumate v. Heller, CASE No. 817.
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | MCIVER |
| Citation | 13 S.C. 94 |
| Docket Number | CASE No. 817. |
| Decision Date | 21 February 1880 |
| Parties | DUNCAN & SHUMATE v. HELLER. |
13 S.C. 94
DUNCAN & SHUMATE
v.
HELLER.
CASE No. 817.
Supreme Court of South Carolina.
Feb. 21st, 1880.
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 instrument
[13 S.C. 95]
there 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
MCIVER, A. J.The plaintiffs by this action sought to charge the appellant, J. B....
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Peurifoy v. Loyal, (No. 12818.)
...Meugy, 1 Bailey, 623; Lawton v. Maner, 9 Rich. 335; Ward-law v. Harrison, 11 Rich. 626; Griffin v. Rembert, 2 S. C. 410; Duncan v. Heller, 13 S. C. 94, and Greene v. Simon Brown's Sons, 128 S. C. 91, 121 S. E. 597. Acceptance of the offer of the securities made by Mauldin and his daughter r......
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Wall St. Mgmt. & Capital, Inc. v. Crites, 10P10557
...a guaranty contract that was then presented to the defendant by the defendant's son. Nevertheless, citing Duncan & Shumate v. Heller,13 S.C. 94 (1880), the court rejected the argument that the son was acting as an agent. Balfour, Guthrie & Co.,86 Or. at 173–74, 167 P. 484. 360 P.3d 681In Du......
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Equitable Life Assur. Soc. v. McElroy, 787.
...Thayer v. Insurance Co., 10 Pick. 325, 331; Borland v. Guffey, 1 Grant, Cas. 394; Beckwith v. Cheever, 21 N.H. 41, 44; Duncan v. Heller, 13 S.C. 94, 96; White v. Corlies, 46 N.Y. 467. The judgment below must be reversed, with costs, and the case must be remanded to the court below, with ins......
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Hudepohl Brewing Co. v. Bannister
...v. Wells, 104 U.S. 159, 26 L.Ed. 686; Davis S. M. Co. v. Richards, 115 U.S. 524, 6 S.Ct. 173, 29 L.Ed. 480; Duncan & Shumate v. Heller, 13 S. C. 94. (4) Notice of acceptance by the creditor to the debtor, who delivers the letter of guaranty, is not notice to the guarantor, there being no pr......
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Peurifoy v. Loyal, (No. 12818.)
...Meugy, 1 Bailey, 623; Lawton v. Maner, 9 Rich. 335; Ward-law v. Harrison, 11 Rich. 626; Griffin v. Rembert, 2 S. C. 410; Duncan v. Heller, 13 S. C. 94, and Greene v. Simon Brown's Sons, 128 S. C. 91, 121 S. E. 597. Acceptance of the offer of the securities made by Mauldin and his daughter r......
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Wall St. Mgmt. & Capital, Inc. v. Crites, 10P10557
...a guaranty contract that was then presented to the defendant by the defendant's son. Nevertheless, citing Duncan & Shumate v. Heller,13 S.C. 94 (1880), the court rejected the argument that the son was acting as an agent. Balfour, Guthrie & Co.,86 Or. at 173–74, 167 P. 484. 360 P.3d 681In Du......
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Equitable Life Assur. Soc. v. McElroy, 787.
...Thayer v. Insurance Co., 10 Pick. 325, 331; Borland v. Guffey, 1 Grant, Cas. 394; Beckwith v. Cheever, 21 N.H. 41, 44; Duncan v. Heller, 13 S.C. 94, 96; White v. Corlies, 46 N.Y. 467. The judgment below must be reversed, with costs, and the case must be remanded to the court below, with ins......
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Hudepohl Brewing Co. v. Bannister
...v. Wells, 104 U.S. 159, 26 L.Ed. 686; Davis S. M. Co. v. Richards, 115 U.S. 524, 6 S.Ct. 173, 29 L.Ed. 480; Duncan & Shumate v. Heller, 13 S. C. 94. (4) Notice of acceptance by the creditor to the debtor, who delivers the letter of guaranty, is not notice to the guarantor, there being no pr......