W. T. Rawleigh Medical Company, a Corp. v. Laursen
| Decision Date | 29 March 1913 |
| Citation | 141 N.W. 64,25 N.D. 63 |
| Court | North Dakota Supreme Court |
Appeal from the District Court for Barnes County; Templeton, Special Judge.
Action against principal and guarantors upon a contract of sale, for the breach of the same. Judgment for plaintiff. Defendants (guarantors) 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.
Affirmed.
Page & Englert, for appellants.
The contract involved was denied in the answer, and there it was necessary for plaintiff to establish the same by at least proving its proper execution. The genuineness of the signatures should be proved. Pullen v. Hutchinson, 25 Me. 249; Brayley v. Kelly, 25 Minn. 160; Curtis v. Hall, 4 N.J.L. 148; Seibold v Rogers, 110 Ala. 438, 18 So. 312; Rutherford v. Dyer 146 Ala. 665, 40 So. 974.
If there was no properly executed contract at the time the guaranty was signed, or, if it was not properly received in evidence, there was no basis for the action. Barnes Cycle Co. v. Reed, 84 F. 603, 33 C. C. A. 646, 63 U.S. App 279, 91 F. 481; Coe v. Buehler, 110 Pa. 366, 5 A 20; Evans v. McCormick, 167 Pa. 247, 31 A. 563.
There was no notice of acceptance of the guaranty on the part of plaintiff, to the guarantors. Standard Sewing Mach. Co. v. Church, 11 N.D. 420, 92 N.W. 805; William Deering & Co. v. Mortell, 21 S.D. 159, 16 L.R.A.(N.S.) 352, 110 N.W. 86.
A party giving a letter of guaranty has the right to know whether it is accepted, and whether the person to whom it is addressed means to act upon it, or give credit on the strength of it. Douglass v. Reynolds, 7 Pet. 113, 8 L.Ed. 626.
The so-called guaranty was a mere offer, never accepted--and was, in any event, without consideration. Standard Sewing Mach. Co. v. Church and William Deering & Co. v. Mortell, supra; Davis Sewing Mach. Co. v. Richards, 115 U.S. 524, 29 L.Ed. 480, 6 S.Ct. 173; Hoffman v. Mayaud, 35 C. C. A. 256, 93 F. 171; Fellows v. Prentiss, 3 Denio, 512, 45 Am. Dec. 484; Winnebago Paper Mills v. Travis, 56 Minn. 480, 58 N.W. 36.
The fact that plaintiff furnished goods to the principal debtor, under the contract, and in reliance upon the offer of guaranty, would not dispense with notice of acceptance, and of plaintiff's intuition to act upon the guaranty. Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498; Rapelye v. Bailey, 3 Conn. 438, 8 Am. Dec. 199; Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279; Milroy v. Quinn, 69 Ind. 406, 35 Am. Rep. 227; Mussey v. Rayner, 22 Pick. 223; Winnebago Paper Mills v. Travis, 56 Minn. 480, 58 N.W. 36; Standard Sewing Mach. Co. v. Church, 11 N.D. 420, 92 N.W. 805; William Deering & Co. v. Mortell, 21 S.D. 159, 16 L.R.A.(N.S.) 352, 110 N.W. 86; Davis Sewing Mach. Co. v. Richards, 115 U.S. 524, 29 L.Ed. 480, 6 S.Ct. 173; Tuckerman v. French, 7 Me. 115; Oaks v. Weller, 13 Vt. 106, 37 Am. Dec. 583; Steadman v. Guthrie, 4 Met. (Ky.) 147; Douglass v. Reynolds, 7 Pet. 113, 8 L.Ed. 626.
Herman Winterer and David S. Ritchie, for respondent.
The engagement or contract of guaranty may be written on the back of the note or bill, or on a separate paper. If accepted and acted upon, it is sufficient. 20 Cyc. 1400, 1401; Mallory v. Grant, 4 Chand. (Wis.) 143, 3 Pinney (Wis.) 443; Forman v. Stebbins, 4 Hill, 181; Peck v. Barney, 12 Vt. 72; Feustmann v. Gott, 65 Mich. 592, 32 N.W. 869; Burns v. Cole, 117 Iowa 262, 90 N.W. 731.
The appellants having guaranteed the performance of the main contract, they are estopped to deny the due execution of the contract. Otto v. Jackson, 35 Ill. 349; Mason v. Nichols, 22 Wis. 376.
Even though a contract is not signed by the principal, yet if he accepts and enjoys the benefits of it, his guarantor will be bound. McLaughlin v. McGovern, 34 Barb. 208; Clark v. Gordon, 121 Mass. 330; McConnon & Co. v. Laursen, 22 N.D. 604, 135 N.W. 213; Emerson Mfg. Co. v. Tvedt, 19 N.D. 8, 120 N.W. 1094; Swisher v. Deering, 204 Ill. 203, 68 N.E. 517; Taussig v. Reid, 145 Ill. 488, 36 Am. St. Rep. 504, 30 N.E. 1032, 32 N.E. 918; Hughes v. Roberts, J. & R. Shoe Co. 24 Ky. L. Rep. 2003, 72 S.W. 799; Davis Sewing Mach. Co. v. Rosenbaum, Miss. , 16 So. 340; People's Bank v. Lemarie, 106 La. 429, 31 So. 138, 141; Bank of California v. Union Packing Co. 60 Wash. 456, 111 P. 573; 14 Am. & Eng. Enc. Law, 1149; Trefethen v. Locke, 16 La.Ann. 19; Wadsworth v. Allen, 8 Gratt. 174, 56 Am. Dec. 137; Farwell v. Sully, 38 Iowa 387; Bickford v. Gibbs, 8 Cush. 154; Worchester County Inst. for Sav. v. Davis, 13 Gray, 531; Reynolds v. Douglass, 12 Pet. 497, 9 L.Ed. 1171; Kennedy & S. Lumber Co. v. S. S. Constr. Co. 123 Cal. 584, 56 P. 457; Garland v. Gaines, 73 Conn. 662, 84 Am. St. Rep. 182, 49 A. 19; Bond v. John V. Farwell Co. 96 C. C. A. 546, 172 F. 58; Cumberland Glass Mfg. Co. v. Wheaton, 208 Mass. 425, 94 N.E. 803; Graham v. Middleby, 185 Mass. 355, 70 N.E. 416; New Haven County Bank v. Mitchell, 15 Conn. 206; Noyes v. Nichols, 28 Vt. 159; Nading v. McGregor, 121 Ind. 465, 6 L.R.A. 686, 23 N.E. 283.
The delivery and acceptance of the contract, the sale of the goods, and extension or credit in reliance upon the guaranty attached, were consummated as the parties intended, by one connected transaction. Cumberland Glass Mfg. Co. v. Wheaton, 208 Mass. 425, 94 N.E. 803; Sheppard v. Daniel Miller Co. 7 Ga.App. 760, 68 S.E. 451; Bank of California v. Union Packing Co. 60 Wash. 456, 111 P. 573; J. R. Watkins Medical Co. v. Brand, 143 Ky. 468, 33 L.R.A.(N.S.) 960, 136 S.W. 867; Stewart v. Knight & J. Co. 166 Ind. 498, 76 N.E. 743; Closson v. Billman, 161 Ind. 610, 69 N.E. 449; Bankers Iowa State Bank v. Mason Hand Lathe Co. 121 Iowa 570, 90 N.W. 612, 97 N.W. 70; Frost v. Standard Metal Co. 215 Ill. 240, 74 N.E. 139; Lennox v. Murphy, 171 Mass. 370, 50 N.E. 644.
OPINIONBRUCE, 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. 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 § 7221, Rev. Codes 1905; Stewart v. Lyness, 22 N.D. 149, 132 N.W. 768; Burger v. Sinclair, 24 N.D. 326, 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. § 7224, Rev. Codes 1905; Burger v. Sinclair, 24 N.D. 326, 140 N.W. 235.
Respondent also moves for a dismissal of the appeal, for the reason that appellant has violated rule 16 of this court 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, it is true, requires all material parts of the record to be embodied in the abstract, but rule 13 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.
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 sixty 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. ...
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