Tuckerman v. French

• Decision Date: 01 June 1830
• Parties: TUCKERMAN & al. v. FRENCH
• Court: Maine Supreme Court

7 Me. 115

TUCKERMAN & al. v. FRENCH

Supreme Judicial Court of Maine, Penobscot

June, 1830

THIS was assumpsit for goods sold by the plaintiffs to one Charles B. Prescott, upon a letter of credit signed by the defendant in these terms:--" Boston, Sept. 13, 1822. Messrs. W. &amp G. Tuckerman, Gent. For the bill of goods which Mr. Charles B. Prescott bought of you on the 6th instant, I hold myself responsible to you for the payment, agreeably to the contract made with him; and I will hold myself responsible for any goods which you may sell him, provided the amount does not exceed at any time the sum of five hundred dollars."

It appeared at the trial, before Parris J. that on the 6th day of Sept. 1822, French, who then resided in Boston, went with Prescott into the plaintiffs' store there, and stated to them that he would be responsible for the value of the goods mentioned in a memorandum then produced by Prescott, which was a little more than two hundred dollars; which Prescott afterwards paid. In December following Prescott took another quantity of goods of the plaintiffs, amounting to thirty two dollars; and at divers other times, down to April, 1826, he made several other purchases, never exceeding five hundred dollars at one time, for some of which he gave his promissory notes. He was always, during that period, indebted to the plaintiffs; often for more than five hundred dollars; and at the time of the commencement of this suit he owed them upwards of seven hundred dollars. The goods, so far as the plaintiffs were concerned, were delivered on the credit of the letter of guaranty; but it did not appear that Prescott had any knowledge of its existence till it was sent to the plaintiffs' attorneys in the autumn of 1827; and he testified that he had not. Nor did it appear that any notice was expressly given by the plaintiffs to the defendant, of the acceptance of the guaranty; but the latter usually spent some months of every year in Bangor, where Prescott, who was his tenant, resided; and was as often as once, at least, in every week, in his store.

Upon this evidence the Judge directed a nonsuit, subject to the opinion of the court upon the question whether the plaintiffs could maintain the action.

Judgment for the defendant.

McGaw and Hatch, for the plaintiffs, argued that it was an original and continuing undertaking on the part of French; binding on him, without notice, till he should repudiate it. Cobb v Little, 2 Greenl. 261; Duval v. Trask, 12 Mass. 154; Mason v. Pritchard, 12 East 227; 2 Campb. 413.

Kent and Rogers, for the defendant, cited Norton v. Eastman, 4 Greenl. 521; Creamer v. Higginson, 1 Mason, 324; Leonard v. Vredenburg, 7 Johns. 23, 32, note; Chase v. Day, 17 Johns. 114.

OPINION

MELLEN, C. J. delivered the opinion of the Court in Cumberland, at the adjournment of May term in August following.

It appears by the Judge's report that the express terms and conditions of the defendant's guaranty have been complied with by the plaintiffs; that is, they did not credit Prescott more...