Wyman, Partridge & Co. v. Bible, 22411.

• Decision Date: 22 July 1921
• Docket Number: No. 22411.,22411.
• Citation: 184 N.W. 45,150 Minn. 26
• Court: Minnesota Supreme Court
• Parties: WYMAN, PARTRIDGE & CO. v. BIBLE.

150 Minn. 26

184 N.W. 45

WYMAN, PARTRIDGE & CO.

v.BIBLE.

No. 22411.

Supreme Court of Minnesota.

July 22, 1921.

Appeal from District Court, Benton County; John A. Roeser, Judge.

Action by Wyman, Partridge & Co. against Peter Bible, Sr. Judgment for defendant, a motion for judgment notwithstanding the verdict was denied, and from the judgment, plaintiff appeals. Affirmed.

Syllabus by the Court

An agreement to accept an offer of guaranty is necessary to complete a valid contract, but the agreement to accept may precede the execution of the guaranty by the guarantor, and when it does, no further notice to the guarantor of acceptance by the guarantee is necessary.

A guaranty ‘against loss' is a guaranty of collection, and before resort can be had to the guarantor on such a guaranty, the creditor must exhaust his remedy against the principal.

Whether the guaranty involved in this case covered purchases of goods made 19 months after the guaranty was given was, under the circumstances of the case, a question for the jury. Dodge & Webber and K. L. Hjort, all of Minneapolis, for appellant.

Morgan J. Flaherty, of Foley, for respondent.

HALLAM, J.

Plaintiff is a wholesale dealer in dry goods. In the summer of 1916 Peter Bible, Jr., was planning to open a store at Foley and ordered goods to the amount of $4,360, to be shipped October 1st. On July 26th plaintiff wrote Peter, Jr., stating, ‘We understood that your father was to be a partner with you, but we see that your goods were purchased in your name,’ and asking that his father ‘acknowledge the fact that he is a partner, or else favor us with a guaranty for which purpose we are inclosing one of our guaranty forms.’ Peter, Jr., took the guaranty to defendant, his father, told him plaintiff wanted the guaranty before shipping the goods. Defendant signed the guaranty by mark and Peter, Jr., mailed it to plaintiff and plaintiff shipped the goods.

The guaranty was in form as follows:

‘For value received I hereby guarantee to save you from loss on account of merchandise sold, or to be sold, by you to Peter Bible, Jr., of Foley, Minnesota.’

This order of goods was later paid for in full. Peter, Jr., bought goods on account from time to time, in all about $7,600 worth, up to August, 1917, when the account was settled by his giving a note which was paid. After that Peter, Jr., was not accorded credit, but made some small purchases for cash until February, 1918, when he purchased on credit a bill of goods amounting to $212.38. On this purchase there is an unpaid balance of $87.78, to recover which this action was brought. The jury found for defendant. Plaintiff moved for judgment notwithstanding the verdict, but not for a new trial. The motion was denied and from the judgment entered plaintiff appeals.

Since plaintiff moved only for judgment notwithstanding the verdict, the only question on appeal is whether the evidence is conclusive against the verdict. National Cash Register Co. v. Merrigan, 181 N. W. 585. Errors in rulings on the trial, or in the charge, furnish no ground for judgment notwithstanding the verdict.

A determination of the question whether the evidence is conclusive against the verdict involves a consideration of the nature of this guaranty and of the rights of the parties under it.

1. No notice of acceptance of the guaranty was required. In general it may be said that an agreement to accept an offer of guaranty of future indebtedness is the material assent necessary to complete a valid contract between the guarantee and the guarantor. Winnebago Paper Mills v. Travis, 56 Minn. 480, 58 N. W. 36;Northern National Bank v. Douglas, 135 Minn. 81, 160 N. W. 193;Burns v. Poole, 106 Minn. 69, 118 N. W. 156. But the agreement to accept may precede the execution of the contract by the guarantor and when an instrument of guaranty is executed and delivered, not as an offer of guaranty, but as an acceptance of a proposition coming from the guarantee, no further notice to the guarantor of acceptance by the guarantee is necessary. Lehigh Coal & Iron Co. v. Scallen, 61 Minn. 63, 63 N. W. 245. See, also, Watkins Medical Co. v. McCall, 116 Minn. 389, 133 N. W. 966;Stone-Ordean-Wells Co. v. Helmer, 142 Minn. 263, 171 N. W. 924. This is just such a case. Plaintiff made the proposition to take the...