46 Mo. 57 | Mo. | 1870
delivered the opinion of the court.
The defendant gave to one Tully the following letter of credit addressed to plaintiff:
“St. Louis, March28, 1867.
“Messrs. Boehne & Gerken, City:
“ Gentlemen- : Please let Mr. P. Tully have the paints, oils, varnishes, glass, etc., he wants. I will be security for the amount for what he will owe you.
Andrew Murphy.”
The plaintiffs let Tully have the goods from time to time, from the date of the order, for about six months, amounting in all to .$575, and Tully made various payments so as to reduce the amount due to $145; to recover this balance the plaintiffs sue the guarantor.
The main controversy arises in regard to the construction of the guaranty, the action being based upon the assumption that it is a continuing one. The intention of the guarantor is certainly not very plain, and he now contends that he only designed to obtain a credit for a single purchase, in order to start a friend in business.
There seems to have been some difference among eminent judges in stating the principle that should govern the con
Is there anything in the language of the present defendant, or in the circumstances in which the parties were placed, to indicate that the guarantor supposed that the guaranty was accepted as a continuing promise? But little light can be thrown upon the meaning by the numerous cases in the books, for the reason that in each case the intention of the parties is arrived at from the pecular phraseology used and the object of the guaranty.
Tully was about to go into business, and was without cash or credit. The defendant knew him, and he was a relative of his family. ‘ ‘ The paints, etc., he wants ” constituted the stock he might from time to time need to carry on the business in which he was about to engage. Had all that was in the mind of the defendant been expressed, the order would have been something as follows: “My friend, P. Tully, is about to engage for the
The order, as originally drawn, was without a revenue stamp, and one was afterward placed upon it. No issue was made in relation to the intent of the omission, and the objection to the introduction of the order was properly overruled. (Whitehill v. Shickle, 43 Mo. 537, and cases cited.)
The other judges concurring, the judgment of the Circuit Court is affirmed.