T.G. Evans & Co. v. McCormick
Decision Date | 01 April 1895 |
Docket Number | 74 |
Citation | 31 A. 563,167 Pa. 247 |
Parties | T.G. Evans & Co., Appellants, v. C. S. McCormick |
Court | Pennsylvania Supreme Court |
Argued March 19, 1895
Appeal, No. 74, July T., 1894, by plaintiffs, from order of C.P. Clinton Co., Sept. T., 1890, No. 167, refusing to take off nonsuit. Affirmed.
Assumpsit on an alleged contract of guaranty. Before SAVIDGE, P.J., of the eighth judicial district, specially presiding.
At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off, SAVIDGE, P.J., filing the following opinion:
to which defendant three days later wired the following answer:
Errors assigned were, (1) entry of nonsuit; (2) refusal to take it off.
The judgment is affirmed on his opinion.
W. C. Kress, for appellants. -- Guaranties, like other commercial contracts, must be construed with reference to the usages of trade: Smith v. Dann, 6 Hill, 543; Dobbin v. Bradley, 17 Wend. 422; Walrath v. Thompson, 4 Hill, 200; Lee v. Dick, 10 Pet. 482; Union Bank of La. v. Coster, (Ct. of App.,) 53 Am. Dec. 285; Douglass v. Reynolds, 7 Pet. 113.
No notice of acceptance was necessary in this case: Cooke v. Orne, 37 Ill. 186; Fiske v. Stone, 35 Dak. 35.
If the guaranty is made at the request of the guarantee, it then becomes the answer of the guarantor to a proposition made to him, and its delivery to and for the use of the guarantee completes the communication between them, and constitutes the contract: Davis v. Wells, 104 U.S. 159; Sewing Machine Co. v. Richards, 115 U.S. 524; Hasselman v. Japanese Dev. Co., 27 N.E. 318.
This case differs from Kay v. Allen, 9 Pa. 320, in this, that in the latter case it does not appear that the plaintiffs' precedent request of the principal was made known to the guarantor, nor that he stated that it was in pursuance of that request that he gave the guaranty.
It is the business of the guarantor to ascertain the amount and extent of his liability: Walker v. Forbes, 25 Ala. 139; 60 Am. Dec. 498. The doctrine of notice is inapplicable to cases where the agreement to accept is contemporaneous with the guaranty: Bank of Newbury v. Sinclair, 60 N.H. 100; 49 Am. Rep. 307.
If defendant had wired plaintiffs offering the guaranty and plaintiffs had wired their acceptance, it is admitted that the contract would have been complete. It is no less so because the order in which the telegrams were sent is reversed: Patterson v. Reed, 7 W. & S. 144; Emerson v. Graff, 29 Pa. 358; Kay v. Allen, 9 Pa. 320; Gardner v. Lloyd, 110 Pa. 278; Adams v. Jones, 12 Pet. 213; Mussey v. Rayner, 22 Pick. 223; Clark v. Remington, 11 Metc. 361; Cremer v. Higginson, 1 Mason, 340; Douglass v Reynolds, 7 Pet. 126; Allen v. Pike, 3 Cush. 238; Paige v. Parker, 8 Gray, 211; Wise v. Miller, 14 N.E. 218; Furst &...
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