90 Ky. 419 | Ky. Ct. App. | 1890
delivered the opinion of the court.
The appellants executed to the appellee the following writing:
“Carrollton, Ky., August 2, 1889.
“We agree to and with the Farmers’ Tobacco Warehouse Company that Hanks & Co., of Carrollton, will well and faithfully carry out and fulfill their contract with said warehouse company in the advance of supplies and money to farmers on growing crops. And that said Hanks & Co. will pay over and return to said warehouse all amounts so advanced on the present growing crops.
“(Signed) Baker, G-inn & Co.”
The appellee sued the appellants as the sureties of Hanks & Co. to recover the amount of money that Hanks & Co. had received on the contract and. had not accounted for. The appellants contend that the money was advanced to Hanks & Co. under a contract variant from that mentioned in the contract sued on, consequently they were not bound for Hanks & Co.’s defalcation.
It is to be observed that Hanks & Co. and the appellee made the contract with the appellee after tbe writing quoted was signed and delivered by the appellants to Hanks & Co., and they and the appellee
It is certain that one or the other of said agreements was made. Is either of them variant from the obligation sued on? Let us see. The obligation obliged the appellants, first, to be responsible for Hanks & Co.’s performance of their contract with the appellee in the advance of supplies and money to the farmers
It is to be observed that there, is no particular contract to be made on the part of Hanks & Co. with the appellee, mentioned in the first part of the appellant’s obligation. According to said obligation, the only contract contemplated was, that Hanks & Co. were to buy the farmers’ growing crops of tobacco, and make the advancements on the tobacco, and the appellee was to furnish the means with which to make the advancements.
It seems clear that the foregoing is the only rational interpretation to be given to the language used. The details of what said contract was to be were not- given, and if its details did not make it variant from what is expressed above, the appellants are bound. Then, according to said contract, Hanks & Co. were to buy the farmers’ growing crops of tobacco, and make advancements thereon in either goods or money, and the appellee was to furnish the wherewith. Now, the appellee’s object was to acquire a right to the farmers’ growing crops of tobacco, and the usual way was to purchase them and make advancements thereon. To accomplish this arrangement it agreed with Hanks & Co. that they should make the purchases and the advancements, and the appellee was to furnish the amount of these advancements at some stage of the transactions, either to Hanks & Co. with which to pay to the farmers, or to Hanks & Co. to reimburse them for their making the advancements. In either case the advancements on account of the purchase of
It is clear as a general rule, that where, as in the case of a guarantor or surety, the consideration does not move to the guarantor or surety, and he is bound solely by the contract, a close adherence to the letter of the contract is the only equitable rule. Although the alteration of the contract is only partial,, and the principal is still under obligations to that contract, though varied in some particulars, the an
But, in the nature of things, this rule can not obtain in a case where the terms of the proposed contract are not agreed on in detail; but if the detail thereafter agreed on constitutes the contract, the performance of which was guarantied, the guarantor or surety is bound on his obligation of guaranty, although the detail is variant from what he had hoped it might be; that is, one manner of performance less expeditious, or less practicable or safe, might be agreed on, instead of another more expeditious, practicable or safe. This, by the silence of the guarantor or surety, he agrees to leave to the discretion of the principals, and as long as that discretion is exercised in a manner not so abusive as to amount to a fraud upon the guarantor or surety, he is bound thereby. As said, the appellants bound themselves that Hanks & Co. should buy growing crops of tobacco and make advancements thereon, and that they should pay the appellee the amount of the advancements, the appellee having furnished the same. The manner of the performance of this contract having been left to the discretion of the principals, and the manner of the performance having been essentially within the scope of the contract, and the terms thereof complied with, the appellants are liable thereon. If said obligation be construed to be a guaranty, it is not such an one as requires notice to appellants as to the amount of the advancements; and if it was necessary to give the •
The judgment is affirmed.