Birmingham News Co. v. Read

77 So. 29 | Ala. | 1917

The instrument in question (which will be set out by the reporter) is a mere proposal of guaranty in the nature of a letter of credit and notice of acceptance is generally necessary to make such instruments binding upon the guarantor. Phillips-Boyd Co. v. McKinnon Co., 73 So. 43;¹ Davis v. Wells, 104 U.S. 159, 26 L. Ed. 686; Shows v. Steiner, 175 Ala. 363,57 So. 700; Manier v. Appling, 112 Ala. 663, 20 So. 978. Nor does it appear from this record that the guaranty was given upon the request of the guarantee to the guarantor so as to make the contract complete, and thus dispense with the necessity for notice of acceptance. Of course, the parties may in several ways waive the necessity of notice of the acceptance, which was done in the Phillips-Boyd Case, supra. But the necessity for same in the case at bar does not seem to have been waived, either expressly or impliedly, from the terms of the instrument or otherwise. The record shows that Gormley gave notice of acceptance to Joseph, but expressly negatives notice to his guarantors, the appellees, and the trial court did not err in rendering judgment for the defendants, and the said judgment must be affirmed.

Affirmed.

McCLELLAN, SAYRE, and GARDNER, JJ., concur.

¹ 197 Ala. 443.