W. T. Rawleigh Co. v. Warren

• Decision Date: 01 May 1924
• Docket Number: No. 5515.,5515.
• Parties: W. T. RAWLEIGH CO. v. WARREN et al.
• Court: South Dakota Supreme Court

47 S.D. 319

198 N.W. 555

W. T. RAWLEIGH CO.

v.WARREN et al.^*

No. 5515.

Supreme Court of South Dakota.

May 1, 1924.

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Action by the W. T. Rawleigh Company against David Warren and Nick Burggroff. Judgment for defendants, new trial denied, and plaintiff appeals. Affirmed on condition, otherwise vacated and new trial granted.Cherry & Davenport, of Sioux Falls, for appellant.

Danforth & Barron and Muller & Conway, all of Sioux Falls, for respondents.

GATES, J.

From 1917 to December, 1920, one Parker, under annual contract with plaintiff, had been selling at retail in the territory consisting of Minnehaha county in this state, stock foods, patent medicines, etc., supplied by plaintiff. In December, 1920, he was furnished by plaintiff with a form of renewal contract for 1921, at which time he was indebted to the plaintiff in the sum of $2,242.12. Immediately below and upon the same page as the contract was the following guaranty:

“For and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby expressly confessed and acknowledged, or in consideration of the above-named seller extending further credit to the said buyer, we, the undersigned, do hereby jointly and severally guarantee unto said the W. T. Rawleigh Company, the above-named seller unconditionally, the payment in full of the balance due or owing said seller on account, as shown by its books at the date of the acceptance of this contract of guaranty by the seller, and the full and complete payment of all moneys due or owing, or that may become due or owing said seller, and all indebtedness incurred by the buyer under the terms of the above and foregoing instrument by the buyer named as such therein, and to all of the terms, provisions, and agreements contained in said instruments we fully assent and agree, hereby waiving notice of acceptance by the seller of this contract of guaranty, and all notice of any nature whatsoever, and agree that the written acknowledgment, by said buyer of the amount due or owing on his account, or that any judgment rendered against him for moneys due the seller, shall in every and all respects bind and be conclusive, jointly or severally, against the undersigned. And we further agree that in any suit brought on this contract of guaranty by the seller no other or further proof shall be required of it than to establish the amount or sum of money due and owing to it from the said buyer, and when so proven shall be conclusive and binding upon the undersigned, and further that it shall not be necessary for said seller, in order to enforce this contract of guaranty, to first institute suit against said buyer nor exhaust its legal remedies against him. And agree that any extension of the time of payment or payments to said buyer shall not release us from liability under this contract of guaranty. It is hereby mutually understood and agreed that this contract of guaranty is conclusive and binding on the party or parties who sign it, whether the same is signed by any other party or parties or not, and that any statement or representation made by any personas to the undertakings of the guarantor or guarantors other than as herein expressed, or as to who or how many parties are to sign this guaranty, shall in no wise affect the rights of the company; and it is mutually understood that this is to be a continuing guaranty; and any notice in any way affecting the responsibility or liability of the signers hereunto, in order to become effective and binding upon the above-named seller, shall be reduced to writing and delivered by registered mail to the office of said seller at Minneapolis, Minnesota.”

Parker secured the signatures of defendants Warren and Burggroff to such guaranty, and it was accepted by the plaintiff in January, 1921. In July, 1921, the contract was terminated, at which time Parker was indebted to plaintiff under the contract in the sum of $2,510.61. This action was brought to recover said sum from the guarantors. Upon the trial the jury returned a verdict for defendants, and judgment was entered dismissing the action. Plaintiff appeals from the judgment and order denying new trial.

Over the objection of appellant, the respondent Warren testified that...