Wingo-Ellett & Crump Shoe Co. v. Naaman
| Citation | 167 So. 634,175 Miss. 468 |
| Decision Date | 27 April 1936 |
| Docket Number | 32225 |
| Parties | WINGO-ELLETT & CRUMP SHOE CO. v. NAAMAN |
| Court | Mississippi Supreme Court |
1. PRINCIPAL AND SURETY.
Gratuitous suretyship cannot be extended by implication, presumption, or construction to impose burdens on surety not clearly within terms of contract.
2 GUARANTY.
In determining whether guaranty is limited or continuing, that construction should be adopted which best accords with intention of parties, as manifested by terms of guaranty in connection with subject-matter and surrounding circumstances neither enlarging the words beyond their natural import in favor of creditor nor restricting them in aid of surety.
3 GUARANTY.
In suit on instrument guaranteeing every dollar person named therein should buy for designated store, not exceeding fixed amount, evidence concerning facts and circumstances surrounding execution of instrument held admissible, in view of uncertainty and doubt as to proper construction of instrument.
4. TRIAL.
Objection, after judgment was directed for defendant, to admission of incompetent evidence concerning intention of defendant in signing guaranty, held not timely.
APPEAL from the circuit court of Leflore county HON. S. F. DAVIS, Judge.
Suit by the Wingo-Ellett & Crump Shoe Company against Mrs. A. Naaman. From a judgment for the defendant, the plaintiff appeals. Affirmed.
Affirmed.
Osborn & Lott, of Greenwood, for appellant.
The instrument executed by the appellee is a special, continuing, limited guaranty. It is a special guaranty because it is directed to one person, the appellant, as distinguished from a general guaranty which is directed to the public generally, or to a particular class of persons. It is a continuing guaranty because by its express terms it relates to sales of goods to be made after the execution of the guaranty, and does not relate to any past indebtedness that might have existed between the appellant and George Samaha. The instrument guarantees every dollar that "George Samaha buys for the George Mercantile Company at Tchula, Mississippi, not exceeding $ 500.00," which language indubitably relates to purchases to be made in the future, without limitation as to time.
12 R. C. L. 1055, Guaranty, sec. 3; 28 C. J. 897, Guaranty, sec. 13, page 960, sec. 110, and footnote 29, and 964, sec. 115, note 74; Lennos v. Murphy, 171 Mass. 370, 50 N.E. 644; Lean v. Geagan, 20 Cal.App. 260, 128 P. 792; Ely & Walker Dry Goods Co. v. Powell 155 Miss. 266, 124 So. 329.
The bankruptcy of Samaha did not affect appellee's liability upon the guaranty.
Richmond Paper Co. v. Bradley, 75 So. 381, 115 Miss. 307, 76 So. 544, 115 Miss. 534; Ely & Walker Dry Goods Co. v. Powell, 155 Miss. 326, 124 So. 329.
It was not necessary that appellant give appellee notice of acceptance of the guaranty.
12 R. C. L. 1055 and 1067, Guaranty, sec. 17; 28 C. J. 904-906, Guaranty, sections 25, 26 and 27; Richmond Paper Co. v. Bradley, 115 Miss. 307, 75 So. 381.
It was not necessary that appellant notify appellee of the various shipments of goods to Samaha.
Davis Sewing Machine Co. v. Rosenbaum, 16 So. 340; 28 C. J. 962, 963, sec. 113; Ferst et al. v. Blackwell, 39 Fla. 621, 22 So. 892.
All conversations and parol agreements between the parties prior to a written agreement are so merged therein that they cannot be given in evidence for the purpose of changing the contract or showing an intention or understanding different from that expressed in the written agreement.
3 Jones Commentaries on Evidence, sec. 454, and page 2699, sec. 1484; Kerr v. Calvert, 1 Walker 15; Millsaps v. Bank of Greenville, 69 Miss. 918, 13 So. 837; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A. L. R. 5; Wood v. Morath, 128 Miss. 143, 90 So. 714; Lowry v. Williams, 143 Miss. 611, 109 So. 670; Perrault v. White Sewing Machine Co., 157 Miss. 167, 127 So. 271; Welch v. Gant, 161 Miss. 867, 138 So. 585.
All of the circumstances surrounding the execution of the guaranty were admitted in evidence without objection by either party.
The guaranty being unambiguous, the rule is well settled that resort may not be had to parol testimony or surrounding circumstances in its interpretation.
28 C. J. 931, Guaranty, sec. 76.
If a guaranty is ambiguous, parol evidence and evidence of surrounding circumstances is admissible; if it is not ambiguous, such evidence is not admissible.
Gardner, Denman & Everett, of Greenwood, for appellee.
The guaranty should be interpreted as limited.
The position which the appellee takes in this case with reference to the interpretation of the guaranty is, first, that the guaranty in question indicates on its face that it was a limited guaranty. Second, if the first contention be incorrect, then there is such a lack of clarity as to what purchases were guaranteed by the letter written by Mrs. Naaman that evidence of the circumstances surrounding execution of the guaranty are admissible in order that the court may have the benefit of these facts in gathering the true intent of the parties as expressed by the language of the instrument.
It is evident from the language of the guaranty that the guaranty is limited and should be so construed, regardless of the surrounding circumstances. Mrs. Naaman, in this case, is a gratuitous surety, assuming for the sake of argument that a valid contract was ever completed.
A gratuitous surety is a favorite of the law, and the contract must be strictly construed to impose upon the surety only the burdens clearly within the terms of the contract so that it cannot be extended by implication presumption, or construction.
50 C. J. 78, 79; 21 R. C. L. 975, 976; Raleigh v. Rotenberry, 164 So. 5; Blythe v. Pinkerton, 57 L. R. A. 468.
In trials before the chancellor, or before the circuit judge, without a jury, the practice of reserving rulings on objections to evidence is permissible because the judge, trained in such matters and skilled in legal discrimination, is able upon final decision to put out of his mind that part of the testimony which he has heard, but which upon a mature examination of the legal questions in respect thereto is found to be inadmissible as evidence; but an untrained jury cannot so well do this. Therefore, the proper practice in jury trials is that the judge shall rule positively one way or the other when the evidence is offered and the objection thereto is made.
64 C. J. 220; 2 R. C. L. 222, sec. 186.
There seems to be no general rule for determining whether a guaranty is continuing, each must be construed according to its terms and surrounding circumstances, to show which parol evidence is admissible.
12 R. C. L. 1061; 28 C. J. 961.
Where the language of a written instrument is in itself contradictory, or when the language used is capable of one of two reasonable interpretations, and the instrument is not so clear as to indicate its meaning conclusively, then parol evidence of the surrounding circumstances may be admitted.
14 Am. & Eng. Ency. of Law 1138; Wheelright v. Pure Milk Assn. , 240 N.W. 769; Huddleston v. Huddleston, 11 S.W.2d 1065; Goldman v. Dangerfield, 281 Pa. 400; 1 Words & Phrases, 4th series.
A limited guaranty contemplates only one particular transaction or a limited number of transactions; so the test in this case is whether a succession of liability is contemplated or whether the guaranty is limited to a particular transaction.
Cocke v. Blackbourn, 57 Miss. 691; Campbell v. Davis, 94 Miss. 164; Sunflower v. Pitts, 108 Miss. 388.
This was a limited and not a continuing guaranty.
Hessig-Ellis Drug Co. v. Parks, 150, Miss. 322.
The contract of guaranty was not completed because of appellant's failure to accept it.
157 A. 421; 5 Elliott on Contracts, pages 4 and 11; 28 C. J. 898; Deering v. Mortell, 16. L. R. A. (N. S.) 356; 1 Brandt on Suretyship, sec. 205; Ellis v. Jones, 70 Miss. 60; 5 S. & M. 347; 43 Miss. 486; Davis v. Wells, 26 U.S. 686; 14 Am. & Eng. Ency. of Law, 1146; 12 R. C. L. 1068; 96 Miss. 308; Sumrall v. Kitselman Bros., 101 Miss. 783, 58. So. 594; Gulfport & Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211; 123 Miss. 455; 130 Miss 36; 154 Miss 399.
No contract of guaranty ever came into existence, because of the failure of appellant shoe company to bind the contract with an acceptance communicated from them to Mrs. Naaman, informing her that they accepted the guaranty and were extending the credit in reliance upon the said guaranty.
Argued orally by Frank Everett, for appellee.
In the county court of Leflore county the appellant sued the appellee on a guaranty reading as follows:
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