176 Mo. App. 430 | Mo. Ct. App. | 1913
This is a suit on a contract of guaranty. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff, incorporated for that purpose, conducts a general banking business at Macon, Georgia, and defendants are engaged in the fruit business in the city of St. Louis, under the firm name of Pillman Bros. H. T. Montgomery & Co. were engaged in purchasing peaches in the vicinity of, and shipping them from, Macon, Georgia, to fruit dealers throughout the country. In order to prosecute this business and have constantly on hand available funds, H. T. Montgomery & Co. arranged with plaintiff bank to cash such drafts as might be drawn by them on solvent customers who agreed in advance to honor the drafts when presented for peaches shipped by H. T. Montgomery & Co. to such customers.
The sixth and last car of peaches contemplated in the original contract of purchase between Pillman Bros, and H. T. Montgomery & Go. was shipped on
It is argued that plaintiff is not entitled to recover for the reason it did not formally accept the proposition of Pillman Bros, to protect and pay the drafts • which might be drawn against them by Montgomery & Co. through the bank. There can be no doubt that where the instrument relied upon as a guaranty is merely an offer or proposition to make good the default of another with respect to the payment of future advances to be made by the proposed guarantee to the principal of the guarantor, an acceptance of such proposition should be signified within a reasonable^ time, to the end that a meeting of the minds touching Í the subject-matter may be revealed. Such, it is said,, f
The contract involved here appears in defendants' letter to plaintiff of date July 7th and which afforded the inducement to plaintiff in cashing the draft which defendant subsequently refused to pay. The letter is as follows:
■“ American National Bank, Macon, Ga.
‘ ‘ Gentlemen:
“Please honor H. T. Montgomery & Co.’s drafts ■drawn on us for $1.25 per crate, to the extent of six cars of peaches.
“We shall protect same at this end and in case we do further business, we will advise you later.
“Tours very truly,
“Pillman Bros.
Per (Signed) J. Pillman.”
It is certain that there is nothing in this letter suggesting that it contained a mere offer or proposition to make good future advances on the part of plaintiff to H. T. Montgomery & Co. Indeed, the letter opens imploringly, for defendants say,. “Please honor H. T. Montgomery & Co.’s drafts.” Having thus pointedly requested plaintiff to do so, the letter then continues with an absolute assurance to the effect that defendants would protect o.r pay the drafts when presented. The direct and absolute promise to this effect is vouchsafed in the following words, “We shall protect same at this end . . . ” It would seem difficult to choose more direct and explicit language to make an absolute promise than that selected by the writer of this letter, when considered with the context employed.
As before said, the letter was received by plaintiff on July 9th and was: acted upon within a very few days thereafter, for it appears that Montgomery & Co. shipped five cars of peaches and drew five drafts against them (all through plaintiff bank) on defendants before the present draft was drawn. Each of such drafts so drawn was honored by defendants when presented, until the one involved here. The instant draft was drawn on the 17th of July against the sixth or last consignment of peaches, and from this it appears but eight days elapsed between the date plaintiff received
In such circumstances, it is entirely clear that no formal notice of acceptance prior to the actual cashing of the draft is essential in order to fix a complete liability therefor against defendants. N’o one can doubt that there is an obvious distinction between an overture or proposition of guaranty and á simple contract to be directly liable. [Brandt, Suretyship & Guaranty (3 Ed.), sec. 212; Carman v. Elledge, 40 Ia. 409; Barker v. Scudder, 56 Mo. 272, 276.] The reason of the rule which requires notice is,-our Supreme Court has said, that the guarantor may know distinctly his liability and be enabled to arrange his relations with the party in whose favor the guaranty is given. If he makes a proposition for advancements, he should be informed of its acceptance, but where he directly agrees and binds himself to be answerable for a specific sum under certain designated circumstances, he knows and has the means within his own hands of determining the extent of his obligation. Therefore, when it appears that the guarantor, with full knowledgé concerning the extent of his obligation, stipulates in direct and absolute terms to pay concerning the subject-matter of which he is advised at the time, no notice is essential. [See Barker v. Scudder, 56 Mo. 272, 276, 277; Allen v. Pike, 3 Cush. 238; Brandt, Suretyship & Guaranty (3 Ed.), sec. 212; see also Bank v. Stewart, 152 Mo. App. 314, 133 S. W. 70; Globe Printing Co. v. Bickley, 73 Mo. App. 499; Union Bank v. Shea, 57 Minn. 180.]
Obviously this answer revealed no cause of action against the bank. Though it be that Montgomery & Co. breached the contract with defendants and supplied them with inferior peaches, it is certain that the bank was under no obligation to inspect the peaches before shipment. The gravamen of the counterclaim seems to be that the bank neglected to ascertain whether or not the peaches so shipped were in accordance with the contract between defendants and Montgomery & Co. Although it be conceded that the bank knew the contract between these fruit dealers required a shipment of first-class, merchantable peaches, cer
What has been said sufficiently disposes of all of the relevant questions raised, and it is unnecessary to further prolong the opinion in the discussion of suggestions which are, obviously, without merit.
The judgment is manifestly for the right party and should be affirmed. It is so ordered.