W.T. Rawleigh Medical Co. v. Tarpley

• Decision Date: 14 May 1912
• Citation: 59 So. 512,5 Ala.App. 412
• Parties: W. T. RAWLEIGH MEDICAL CO. v. TARPLEY ET AL.
• Court: Alabama Court of Appeals

59 So. 512

5 Ala.App. 412

W. T. RAWLEIGH MEDICAL CO. v. TARPLEY ET AL.

Court of Appeals of Alabama

May 14, 1912

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Action by the W. T. Rawleigh Medical Company against W. L. Tarpley and others. From a judgment sustaining pleas in abatement filed by certain of the defendants, plaintiff appeals. Affirmed.

Barnes & Denson, of Opelika, for appellant.

O. S Lewis, of Tuskegee, and J. E. Henry, of Opelika, for appellees.

PELHAM, J.

Suit was brought in the trial court by the appellant against W. L Tarpley, Peter Preer, W. T. Laslie, and W. E. Huddleston. Tarpley resides in Lee county, within the jurisdiction of the court, and a summons was duly served upon him, and branch summonses issued to Macon county to each of the other defendants, the place of residence of these defendants, and were served upon them there. The defendants Preer Huddleston, and Laslie, who reside out of the jurisdiction of the court in Macon county, pleaded in abatement, alleging that they could not be sued in said court because not jointly liable with the defendant Tarpley on the contract, the foundation of the plaintiff's cause of action; that Tarpley did not join in the contract on which they are sued and setting up that they were each resident citizens of Macon county, Ala.

The allegations of the complaint show that Tarpley on January 12 1909, entered into a written agreement or contract with the plaintiff medical company whereby he agreed and bound himself to purchase and pay for certain goods. This contract was not signed by the other defendants, but only by Tarpley. The same paper, however, containing the contract signed by Tarpley, contained the following printed obligation signed by the other defendants:

"For and in consideration of the sum of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, and the extension of further time on account of goods previously sold to the above mentioned person, we the undersigned, agree jointly and severally, to be responsible for the payment of any balance due said W. T. Rawleigh Medical Company on account from him as shown by its books at date of acceptance of this contract; and in consideration of the said W. T. Rawleigh Medical Company extending him further credit, 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 under this guaranty.

"Responsible men sign below in ink and indelible pencil.

(Names) (Occupations) (P. O. Address)

W. E. Huddleston, Sheriff, Tuskegee, Alabama.

Peter Preer, Cotton factor, Tuskegee, Alabama.

W. T. Laslie, Merchant, Tuskegee, Alabama.

"The above guarantors are entitled upon request, at any time, to a statement of salesman's account.

"To insure prompt consideration of contract, names, occupations and full addresses must appear plainly in above spaces."

The court below held the pleas in abatement filed by the defendants Preer, Huddleston, and Laslie going to the jurisdiction of the court to be good as against the motions to strike and demurrers of the plaintiff, and that ruling of the court raises the one question presented for determination on this appeal; and that is whether the contract sued on is one of guaranty or one of suretyship.

"The principal and surety, being directly and equally bound, may be sued jointly in the same suit, while the guarantor, being bound by a separate contract and only collaterally liable, cannot usually be joined in the same suit with the principal." 1 Brandt on Suretyship & Guaranty (3d Ed.) § 2, and authorities cited in note 17. The guarantor of an open account cannot be sued jointly with his principal in the county in which the debtor resides and where he does not reside. Sims v. Clarke, 91 Ga. 308, 18 S.E. 158. If, then, the defendants are guarantors, the pleas in abatement set up matters going to the jurisdiction of the trial court that are properly pleaded, and, if these defendants are sureties, they cannot be heard to set up these matters and things as going to the court's jurisdiction to them as parties defendant with Tarpley.

The distinction or difference between surety and guarantor is treated and clearly defined in Saint v. Wheeler & W. Mfg Co., 95 Ala. 362, 10 So. 539, 36 Am. St. Rep. 210. It is there said that the essential substantive distinction seems to lie in this: "That when the sponsors for another assume a primary and direct liability, whether conditional or not in the sense of being immediate or postponed till some subsequent occurrence, to the creditor, they are...