Standard Sewing Mach. Co. v. Church

• Decision Date: 09 December 1902
• Citation: 11 N.D. 420,92 N.W. 805
• Parties: STANDARD SEWING MACH. CO. v. CHURCH et al.
• Court: North Dakota Supreme Court

11 N.D. 420

92 N.W. 805

STANDARD SEWING MACH. CO.

v.CHURCH et al.

Supreme Court of North Dakota.

Dec. 9, 1902.

Syllabus by the Court.

1. Construing section 4630, Rev. Codes, which provides that “a mere offer to guarantee is not binding until notice of acceptance is communicated by the guarantee to the guarantor, but an absolute guaranty is binding upon the guarantor without notice of acceptance,” it is held that the test as to whether a guaranty amounts to an absolute guaranty, or merely an offer of guaranty, is whether there has been or has not been that mutual assent or meeting of minds necessary to the existence of a contract. If there has not been such assent, the instrument amounts merely to an offer of guaranty, and becomes binding upon the guarantors only when notice of acceptance is communicated as required by the statute.

2. It is held that the instrument sued upon in this case was only an offer of guaranty, and that, inasmuch as notice of acceptance was not given to the defendants, they are not liable thereon, and a verdict was properly directed in their favor.

Appeal from district court, Grand Forks county; Charles J. Fisk, Judge.

Action by the Standard Sewing Machine Company against Jeremiah R. Church and George Salisbury. Judgment for defendants, and plaintiff appeals. Affirmed.John P. Galbraith and Bosard & Bosard, for appellant. Frank B. Feetham, for respondents.

YOUNG, J.

The plaintiff brings this action upon a written instrument purporting to be an undertaking of guaranty, signed by the defendants, and by which they guaranty to plaintiff the payment of the price and value of such sewing machines and articles connected therewith as the plaintiff might furnish to one J. N. Edmunds upon credit, limiting their liability, however, to the sum of $1,000. The case was tried to a jury. After plaintiff had rested his case, counsel for defendantsmade a motion for a directed verdict, upon the ground “that the plaintiff had not proved facts sufficient to constitute a cause of action as against the defendants.” This motion was granted, and judgment was entered dismissing the action and for costs. Plaintiff has appealed from the judgment, and in a statement of case duly settled has specified the ruling upon the above motion as error.

The instrument sued upon is as follows: “To the Standard Sewing Machine Company: * * * I, J. R. Church, George Salisbury, of Grand Forks, in the county of Grand Forks, North Dakota, Eddie Reddy, Grand Forks, in consideration of your supplying J. N. Edmunds, of Grand Forks, in the county of Grand Forks, in the state of North Dakota, with sewing machines and articles connected therewith on credit, do hereby guarantee the payment of the price and value of said goods at maturity to an amount not to exceed one thousand (1,000) dollars, whether the same be due on open account or by note or acceptance or otherwise, and you are hereby authorized to grant such delay as you may see fit, for the payment of any such sum which may be due you at any time,-this agreement to be held as a continuing security in your favor, and to cover any and all renewals of the debts, notes, or acceptances which may from time to time be made, and any interest or cost due thereon, and any balance which may at any time be due from said J. N. Edmunds to you; and, should you at any time institute legal proceedings under this guarantee, I hereby waive any right or claim to demand or receive security for costs in such proceedings. Nov. 5th, 1891. J. R. Church. George Salisbury.”

Evidence was introduced showing the execution of the instrument by defendants, and that plaintiff had thereafter consigned a large number of sewing machines to Edmunds to be sold by him on commission, and that the latter had not accounted for the same. Counsel for the respective parties then stipulated in open court the circumstances under which the above instrument was executed. It was stipulated that it “was obtained by the J. N. Edmunds therein named from the sureties, and by him afterwards delivered to the plaintiff; that neither the plaintiff nor any of its agents requested the defendants to sign the instrument, nor were they present when the same was signed and delivered to the said...