Zeo v. Loomis

• Decision Date: 10 October 1923
• Citation: 141 N.E. 115,246 Mass. 366
• Parties: ZEO v. LOOMIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 366

141 N.E. 115

ZEO

v.LOOMIS et al.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 10, 1923.

Appeal from Superior Court, Hampden County; C. T. Callahan, Judge.

Bill in equity by Nicholas Zeo against Peter Loomis and others, to establish amount of an account alleged to have been guaranteed by the defendant George K. Loomis, and to apply thereon the interest of such defendant in a partnership. From a final decree dismissing the bill, plaintiff appeals. Affirmed.

In response to plaintiff's request for a report of material facts, the trial judge found the facts as summarized in the opinion and ruled as a matter of law that the guaranty expired when plaintiff closed the first account with Peter Loomis, and that plaintiff could not maintain the bill. Plaintiff's requests for a report of additional material facts, and that the record of all the evidence be included or attached, was denied. Final decree was entered the day following the hearing of the case.

Clinton E. Bell, of Springfield, for appellant.

Morrissey & Gray, of Springfield, for appellee.

RUGG, C. J.

This suit is brought to recover upon a written guaranty dated July 24, 1919, addressed to the plaintiff and signed by the defendant George K. Loomis, in these words:

‘I hereby guarantee the payment of all bills contracted with you by Peter Loomis.’

The facts are that on that date, Peter Loomis being about to engage in business on his own account, the plaintiff would not open an account with him unless it was guaranteed. The defendant George K. Loomis thereupon signed and delivered the guaranty. Thereafter goods were sold to Peter Loomis on credit until some time in August, 1919. Then Peter Loomis ceased to do business as an individual and formed a partnership. That was succeeded by other partnerships of which Peter Loomis was a member and which successively continued to do business until the spring or summer of 1920, when Peter Loomis in his individual capacity again engaged in business at the same place. When the first partnership was formed, the plaintiff closed his account with Peter Loomis as an individual and did business with the partnership of which he was a member, and opened a new account with him as an individual when he resumed doing business alone. The present suit is founded upon this last account. No notice was given by the plaintiff to the defendant George K. Loomis, of his intention to open the last and new account with Peter Loomis. The defendant George K. Loomis knew of the partnerships to which Peter Loomis was a party. The plaintiff never expressly released the defendant George K. Loomis from the guaranty, and the latter never gave the former notice of his intention to be no longer bound thereby.

The liability of a surety or guarantor is to be ascertained from the terms of the written instrument by which his obligation is expressed, construed, according to the usual rules of interpretation in the light of the subject-matter, the well understood usages of business, and the relations of the parties to the transaction. Where the words are unambiguous, they alone can be examined to determine their meaning. Boston Hat Manufactory v. Messinger, 2 Pick. 223, 238.

The duration of the guaranty here in suit is not stated in the writing. It must be determined from all the circumstances according to the reasonable inferences presumably entertained by normal business men. It may be assumed that at least the guaranty was intended to be operative for a reasonable time. Rotch v. French, 176 Mass. 1, 4, 56 N. E. 893,79 Am. St. Rep. 292;Tilton v. Whittemore, 202 Mass. 39, 88 N. E. 329;Bent v. Hartshorn, ...