Thompson v. Glover

• Decision Date: 19 November 1879
• Parties: Thompson v. Glover.
• Court: Kentucky Court of Appeals

78 Ky. 193

Thompson v. Glover.

Court of Appeals of Kentucky.

November 19, 1879

1. There must be an acceptance of the offer of guaranty, and notice, express or implied, given the guarantor.

2. Where the transaction is so connected, and of such a nature as to give the guarantor this information, no specific notice is necessary.

APPEAL FROM THE JEFFERSON COMMON PLEAS COURT.

MOSS &amp RODMAN FOR APPELLANTS.

1. The only cases where notice of acceptance is necessary is where there is a mere offer or proposal to guarantee.

2. As to whether this was an absolute agreement or a mere proposition to guarantee, we cite the following authorities (Howe v. Nichols, 22 Maine, 175; Lent v Padelford, 10 Mass. 230; Douglass v. Howland, 24 Wend., 35; Whitney v. Grant, 24 Wend., 82; Smith v. Dame, 6 Hill, 543; Wildes v. Savage, 1 Story, 22; 2 American Leading Cases, pp. 63, 79; White v. Reed, 15 Conn. 457.)

3. It is clear that if notice was necessary, the allegation in the answer cured the defect. The fault was aided by pleading over. (Stephen on Pleading, p. 147; Lou. and Port. Canal Co. v. Murphy, 9 Bush, 530; Jewell v. Mills, & c,; 3 Bush, 62; Chitty's Pleading, p. 673; 3 Wheaton, 461.)

D. W SANDERS AND G. B. EASTIN FOR APPELLEE.

No brief.

OPINION

HINES JUDGE:

T. B. Glover, of the city of Louisville, Kentucky, having shipped to appellant, in the city of New York, twenty-three hogsheads of tobacco, and desiring to draw on appellant for their full value, it was agreed between appellant, through his agents, Lewis & Bro., in the city of Louisville, and appellee, that in consideration that appellant would pay said draft, appellee would make good to appellant any loss he might sustain by reason of the tobacco failing to sell for the amount thus to be advanced. At the time of the agreement appellee executed the following paper, which was forwarded by Lewis & Bro. to appellant in New York, to-wit:

" LOUISVILLE, KY., May 26th, 1876.

MR. S. E. THOMPSON, New York:

DEAR SIR: My brother, T. B. Glover, having this day shipped to you for his account twenty-three hogsheads of tobacco marked [giving numbers], and in view of his drawing for full cost of same, I hereby agree to secure you against any loss that this shipment may make, and in the event of any loss, bind myself to pay it.

(Signed), THOS. H. GLOVER."

On the same day, and at the same time, T. B. Glover drew a one-day sight-draft for $1,943.22, addressed to appellant, New York, and payable to the order of appellee, which was indorsed by appellee, accepted by appellant and paid by him at maturity. The tobacco was sold and failed to realize the amount of the draft by $854.39, of which fact appellee was notified within ten days, and failing to pay, this action was instituted.

The only question presented by the appeal, necessary to be considered, is whether appellee was entitled to notice of acceptance of the guaranty.

It is well established that there must be an acceptance of the offer of guaranty, and a notice, express or implied, to the guarantor of such acceptance. The reason of this rule is, that the guarantor may have an opportunity of arranging his relations with the party for whose benefit or in whose favor the guaranty is given. The rule should not be pressed beyond this reason. When the whole of the transaction is connected, and of such a nature as to give the guarantor this information, no specific or formal notice is necessary. In the case under consideration the agreement to accept, made with Lewis & Bro. for appellant, was contemporaneous with the guaranty, and was the consideration therefor, and all the parties being privy to the whole transaction, no specific notice was necessary. (Wildes v. Savage, 1 Story, 22; Bleeker v. Hyde, 3 McLean, 279; Chitty on Contracts, 744, note b1; Parsons on Contracts, vol. 2, page 13; Steadman v. Guthrie, 4 Met., 153; Fells on the Law of Guaranty, page 523; White v. Reed, 15 Connecticut, 463; Smith v. Donn, 6 Wendell, 543.)

The minds of all the parties met, and the contract was completed at the time of the execution and delivery to Lewis & Bro. of the writing by appellee and of the drawing of the draft. The only notice that could have been of any benefit to appellee, and to which he was entitled, was the notice of the amount that the tobacco fell short, and the failure of T. B. Glover to pay the same. This notice appellee received within a reasonable time. (2 Bush, 566; Bowman v. Curd.)

Judgment is reversed and cause remanded, with directions to enter judgment...