134 Minn. 186 | Minn. | 1916
On February 4, 1910, defendant executed and delivered to plaintiffs a written guaranty which, so far as here material, reads: “In .consideration of your furnishing to Miss C. R. Moses of Minneapolis, Minn., merchandise as desired by her for four months from January 5th, 1910, I hereby agree to be liable for the same, and extensions of time of payment may be granted by you without releasing me from such liability.
During the time stated in the writing, plaintiffs were engaged in the wholesale millinery business in Minneapolis, Minnesota, in which city Miss Moses was conducting a retail millinery store. The court found that the writing mentioned was “the only agreement or contract between said plaintiffs and defendant whereby he became or is sought to be held liable in this action for any amount.” When there is ambiguity in the language of a contract, surrounding circumstances and, perhaps, contemporaneous writing, made or acquiesced in by the parties to'the contract as explanatory of the same, may be resorted to in order to ascertain the meaning and intention of the instrument. In this case defendant insists that a letter written by him to plaintiffs on January 19, 1910, should be considered in construing the guaranty, because the guaranty was sent with the letter and was therein referred to. The difficulty with the proposition is: (a) We are not persuaded that this letter is part of the settled case; it is found in the files attached to a deposition given by one Tyson, but Tyson having been present at the trial, no use was made of his deposition or of the exhibits attached thereto; and (b) the finding of the court, as above stated, confines us to the guaranty itself, in construing the obligation assumed by defendant.
. This court is not committed to a rule of strict construction in favor of
When the instrument fairly indicates a limitation upon the credit to be given, the guaranty cannot be extended so as to include goods furnished after the limit has been reached. Examples of such cases are: Twohy v. McMurran, 57 Minn. 242, 59 N. W. 301; Historical Pub. Co. v. La Vaque, 64 Minn. 282, 66 N. W. 1150; Cheshire Beef Co. v. Thrall, 72 Vt. 9, 47 Atl. 160 (by a court inclined rather favorably to a guarantor); Boston & Sandwich Glass Co. v. Moore, 119 Mass. 435; Sherman v. Mulloy, 174 Mass. 41, 54 N. E. 345, 75 Am. St. 286, and Cutler v. Ballou, 136 Mass. 337. In the case last cited the writing to be construed was: “Please deliver to Charles A. Howland goods as he may want from time to time, not exceeding in amount ($300) three hundred dollars, and if not paid for by him within thirty days I will be responsible for the same.” The guaranty was held to cover only the $300 worth of goods first sold to Howland. But in the discussion the court says: “If the contract of the
Under the findings and the evidence we are of opinion that the agreement here involved should be held a continuing guaranty for the time therein stated.
The judgment is reversed and a new trial granted.