W. T. Rawleigh Med. Co. v. Laursen

• Decision Date: 29 March 1913
• Citation: 141 N.W. 64,25 N.D. 63
• Parties: W. T. RAWLEIGH MEDICAL CO. v. LAURSEN et al.
• Court: North Dakota Supreme Court

25 N.D. 63

141 N.W. 64

W. T. RAWLEIGH MEDICAL CO.

v.LAURSEN et al.

Supreme Court of North Dakota.

March 29, 1913.

Syllabus by the Court.

A justification upon an appeal bond which fails to state that the sureties are worth “the sums therein mentioned over and above their debts and liabilities, not by law exempt from execution, in property within the state of North Dakota,” is defective. The appellant, however, may upon a proper showing, and under section 7224, R. C. 1905, be allowed to either amend the undertaking or to file a new bond in the Supreme Court.

It is not in itself a sufficient ground for the dismissal of an appeal that an appellant has failed to include in his abstract all of the evidence and exhibits necessary to a proper consideration of the case.

Under section 7231, R. C. 1905, which provides that, “unless continued for cause, all civil cases appealed to the Supreme Court shall be heard at the next succeeding term of the court * * * when the appeal is taken sixty days before the first day of the term,” and when appellant fails to serve and file his abstract in time for the next term, but no motion to dismiss the appeal on that ground is made at such term, the court may, upon a proper showing, at such subsequent term excuse such failure.

Such statute is not self-operating, and no motion having been made to dismiss the appeal at the first term, and since, if such motion had been made, the court might have granted a continuance, or for other reasons denied the motion, the matter would come up at the second term as a new question to be presented at such term.

Where defendants had guaranteed the faithful performance of a certain contract, and were sued for the breach thereof, on such guaranty, it was not necessary to prove the signature of the plaintiff to the original contract, it being shown that he had accepted the same and had shipped goods thereunder, and the signatures of the other party and of the guarantors being proven.

The right of a guarantor at the common law and under section 6080, R. C. 1905, to notice that his proposal of guaranty is accepted and will be acted upon, may be waived by the form of the guaranty or by the manifest intention of the parties as implied thereby. Where, therefore, a guaranty read, “In consideration of the W. T. Rawleigh Medical Company extending credit to the above named person, we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree that any extension of time or change of territory shall not release us from liability hereon,” and it appeared from the evidence that the said guaranty was attached to the contract and was taken by the principal to the guarantors and signed by them, and then was sent by the said principal to the vendor or guarantee, and that the said vendor wrote to the principal accepting the same and furnished goods thereunder, held, that it was not necessary to prove an acceptance of the guaranty by the seller or guarantee, personally made or written to the guarantors.

Appeal from District Court, Barnes County; Tempelton, Special Judge.

Action by the W. T. Rawleigh Medical Company, a corporation, against Lauritz Laursen and others on a contract of sale. From a judgment for plaintiff, certain defendants appeal. Affirmed.

On or about May 10, 1908, a contract was entered into between the W. T. Rawleigh Medical Company and one Lauritz Laursen, under and by the terms of which the said Medical Company agreed to sell to the said Laursen certain merchandise, and the said Laursen agreed to pay for the same according to a schedule of prices and in a manner in said contract stated. Before the delivery of the goods, the Medical Company required that a guaranty be furnished for the faithful performance of the contract on the part of the said Laursen, and this contract was sent to Laursen by the company for both his signature and that of the guarantors. The contract was then signed by Laursen, and he took the same to the guarantors and obtained their signatures to the guaranty printed thereon. He then mailed the contract to the Medical Company. On May 20th, the company wrote Laursen, accepting the said contract and approving of the said sureties. Subsequently the Medical Company forwarded the goods under the contract to Laursen. Payment was not made, and an action was brought against Laursen and the guarantors, Lee and Blank, to recover the agreed price. At the conclusion of the trial the court directed a verdict in favor of the plaintiff, and from the judgment entered thereon the defendants Lee and Blank appealed.

Page & Englert, of Valley City, for appellants. Herman Winterer and David S. Ritchie, both of Valley City, for respondent.

BRUCE, J. (after stating the facts as above).

A motion is made to dismiss the appeal for the reason that the appellants have failed to perfect the same by serving and filing a sufficient undertaking within one year from the date of notice of entry of judgment.

[1] There is no doubt in our minds that the undertaking is defective. The justification, indeed, fails entirely to state that the sureties are worth “the sum therein mentioned over and above their debts and liabilities not by law exempt from execution, in property within the state of North Dakota.” This allegation seems to be necessary. See section 7221, R. C. 1905; Stewart v. Lyness, 132 N. W. 768;Burger v. Sinclair, 140 N. W. 235. Appellant, however, has asked this court for leave to either amend the undertaking on appeal so as to remedy the defect, or to be allowed to file a new undertaking. This permission, where the court has reasonable grounds to believe that the appeal has been taken in good faith, may be granted, even though the time for appealing has expired. Section 7224, R. C. 1905; Burger v. Sinclair, supra.

[2] Respondent also moves for a dismissal of the appeal for the reason that appellant has violated rule 16 of this court (91 N. W. ix) by failing to include in his abstract all of the evidence, exhibits, etc., necessary to a proper consideration of the case, as the same appear in the settled statement of the case. He is, however, in error in regard to the rule. Rule 16 applies merely to trials de novo, of which this is not one. Rule 12 (91 N. W. vii), it is true, requires all material parts of the record to be embodied in the abstract, but rule 13 (91 N. W. viii) gives to the respondent the opportunity to prepare an amended abstract if he deems the abstract of the appellant insufficient. We do not believe that any material exhibits were omitted. Even if they were, the omission would hardly be ground for the dismissal of the appeal.

[3] Respondent also urges that the appellant has failed to file abstract and briefs within the time required by statute, and that therefore the appeal should be dismissed. The notice of appeal and undertaking on appeal were served upon the respondent in the latter part of August, 1911, and were filed in the office of the clerk of the district court on the 6th day of January, 1912. Respondent contends that, the record showing that the appeal was perfected more than 60 days prior to the April term of this court, it was necessary, under the statute, that the cause “should be heard at said term, unless, for good cause shown, it was continued,” and that since no steps were taken in the matter, or abstract or briefs filed until the month of August, 1912, the appeal must be deemed to have been abandoned. He cites section 7231, R. C. 1905, which provides that: “Unless continued for cause, all civil cases appealed to the Supreme Court shall be heard at the next succeeding term of court in either of the cases following: (1) When the appeal is taken sixty days before the first day of the term; (2) When by either party a printed abstract and a printed brief are served twenty-five days before the first day of the term.”

[4] Appellants, on the other hand, seek to excuse their delay by showing that the transcript was not obtained until May 15, 1911; that the statement of the case was settled June 22, 1911; that the notice of appeal and undertaking were served on the 22d day of July, 1911, and filed on the 6th day of January, 1912; that during February they sent the abstract to the printer, but that the printer delayed and failed to get out the same in time for the April term of the court, though he did so in ample time for the October term; and that the abstracts were filed and served in ample time for the October term. Plaintiff and respondent insists, nevertheless, that the appeal should be dismissed, and that section 7231 of the statute is mandatory. Counsel cites the South Dakota cases of Todd v. Carr, 17 S. D. 514, 97 N. W. 720;Russell v. Deadwood Dev. Co., 16 S. D. 644, 94 N. W. 693;Bunday v. Smith, 23 S. D. 308, 121 N. W. 792;Whitcher v. Foote (S. D.) 128 N. W. 1022;Neilson v. Chicago N. W. Ry. Co., 27 S. D. 96, 129 N. W. 907. None of these cases, however, bear out his proposition in its entirety. In all of them the court exercised its discretion, or the motion for dismissal was made at the proper time. The statute, we believe, is not self-executing. All that it and the rules provide is that at the next succeeding term of court the cases shall be heard, and, unless the briefs and abstracts are filed, shall be dismissed unless good ground is shown for their continuance and they are continued bythe court. Plaintiff and respondent made no motion for a dismissal at the April term. If he had done so, this court in its discretion could have dismissed the appeal, or, on a proper showing, have continued the case until the October term. We hold, in short, that the statute is not self-executing, and since, under the showing in this case, the delay seems to have been excusable, we will now when the point is first raised deny the motion to dismiss the appeal.

[5] Defendants and appellants assign as error the action of the...