42 So. 1014 | Ala. | 1906
Plaintiff’s right of recovery in this case, upon the second count of the complaint, confessedly is dependent upon the construction of the written instrument, addressed to it and signed by defendant, upon the faith of which the lumber was furnished to Luter Bros, to be used by them in the construction of the house. It is in this language: “This is to certify that Mess. Luter Bros, has contracted to erect a frame house for me on the Convent Land, 4 North Spring Hill Avenue,, and any material, that is, lumber used in
It appears to us that it is obvious that this writing contains no promise to pay any certain sum of money at all events and at a fixed time. It is, therefore, not a promissory note; nor is it a contract binding Donovan absolutely to pay the plaintiff $200 at the date of the maturity of the first payment under the building contract with Luter Bros. It is no more than its plain language imports — a promise by Donovan to pay to plaintiff, upon Luter Bros.’ order, at the maturity of the first payment under the building contract, a sum of money not to exceed $200. It is, therefore, a conditional promise, and not an absolute one; the condition being that plaintiff would obtain an order from Luter Bros, for lumber furnished and used in the'construction of the house, not to exceed $200, and present the samé to Donovan before the first-payment was made by Donovan to Luter Bros, under the contract. The testimony establishes that plaintiff in no wise complied with the condition upon which Donovan’s piomise to pay ivas predicated. Nor does it afford in the remotest degree an inference that plaintiff ivas induced.by word or act on the part of Donovan to part with its lumber other than upon the paper writing above set forth. Tf the plaintiff has lost the value of the lumber on account of the insolvency of Luter Bros, or ■ othenvise, this is no' fault of Donovan’s. It could have, before delivering the lumber to Luter Bros, obtained the order requisite to a compliance with the condition named by him. Their failure to do so ivas their own neglect. And, upon failure to obtain and present the order before the ftist payment to Luter Bros, matured, Donovan, with no knowledge that the lumber had been furnished, had the right to discharge his obligation to Luter Bros, under the contract. In short, “a contract of suretyship is essentially a piomise to answer for the debt, default, or miscamiage of another. * * * The contract is strictly construed as to his liability, and cannot he extended to any other person, or any other subject-, or to or for any other period of time, than such as may he included in its
Affirmed.
