The Federal Rubber Company v. Pruett, Civil 4043

• Decision Date: 05 February 1940
• Docket Number: Civil 4043
• Citation: 55 Ariz. 76,98 P.2d 849
• Parties: THE FEDERAL RUBBER COMPANY, a Corporation, Appellant, v. MYRTLE E. PRUETT, Appellee
• Court: Arizona Supreme Court

98 P.2d 849

55 Ariz. 76

THE FEDERAL RUBBER COMPANY, a Corporation, Appellant, v. MYRTLE E. PRUETT, Appellee

Civil No. 4043

Supreme Court of Arizona

February 5, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. W. McFarland, Judge. Reversed and remanded with directions.

Messrs Townsend, Jenckes & Wildman, for Appellant.

Mr. I A. Jennings and Mr. Henry S. Stevens, for Appellee.

OPINION

Ross C.J.

The Federal Rubber Company commenced this action against Super Service, Inc., for the sum of $1,546.19, balance due for goods sold to it, and against Myrtle E. Pruett, guarantor of such account.

At the close of the case, on motion of plaintiff, the court directed a verdict against Super Service, Inc., for the full amount of the claim. The question of Pruett's liability on her guaranty was submitted to the jury and the jury returned a verdict in her favor.

The plaintiff has appealed and assigns as errors the court's refusal to direct a verdict in its favor against defendant Pruett, and its refusal to give instructions requested.

The guaranty given plaintiff by defendant Pruett is in words and figures as follows:

"Know All Men, that, in consideration of the sale of merchandise from time to time, upon credit, by The Federal Rubber Company, a corporation, duly organized under the laws of the State of Illinois, to Super Service, Inc. Phoenix, Ariz., hereinafter called the Purchaser, I, we, or either of us, Hereby Jointly and Severally Guarantee to the Federal Rubber Company;

"1. The payment of such sum or sums of money as may become due at any time or times hereafter, become due (sic) to it from the Purchaser, for any goods sold and delivered by it at any time hereafter to the Purchaser and payment of all notes and renewals given on account thereof; and The Federal Rubber Company is hereby authorized to grant such extensions of time of payment of such indebtedness and make such settlements of same as it may see fit; and I, we, or either of us, jointly and severally hereby waive notice of acceptance hereof, amount of sales, dates of shipments and delivery and notice of default in payment; and in the event of the failure of the said Purchaser to pay the whole or any part of the indebtedness of said Purchaser, I, we, or either of us, acknowledge myself or ourselves jointly and severally liable and agree to pay same upon demand as though the material had been purchased and invoiced direct to my or our own account or accounts jointly and severally, and I, we, or either of us, hereby jointly and severally waive the requirement of legal proceedings against the said Purchaser.

"2. That this agreement shall remain in full force, until the delivery to The Federal Rubber Company, at its Place of Business in Chicopee Falls, Mass., of a notice in writing, signed by me, or us, of my or our intention to revoke same not less than ten days from date of delivery of said notice; but this agreement shall apply to all sales made and contracts entered into, prior to the date on which said notice shall have been served as aforesaid.

"3. That this agreement shall bind our heirs and personal representatives.

"Witness my or our hand and seal this 21st day of August, 1936, at Phoenix, Arizona."

The complaint alleges the extension of credit to Super Service, Inc., in the above sum after the execution of the guarantee contract, and the execution and delivery to plaintiff for said sum, on January 28, 1937, by Super Service, Inc., of fifteen promissory notes for $100 each and one for $46.19, bearing 6 per cent. interest, payable monthly beginning April 15, 1937, and containing acceleration clauses to the effect that if any one of the notes was not paid when due that all of the unpaid ones would become at once due and payable, and providing for a reasonable attorney's fee in case of suit to collect.

Pruett's answer admits the execution of the guarantee contract denies, on lack of information, that defendant Super Service, Inc., on or about January 28, 1937, was indebted to plaintiff in the sum of $1,546.19; and alleges affirmatively that

"plaintiff agreed with def...