Cahuzac & Co. v. Samini

Jun 15, 1856

Versions:29 Ala. 288

Lead Opinion

STONE, J.

Thе averments of the amended complaint in this record disclose only an overture, or offer, to guaranty the -payment of a debt which M. Franceschi proposed to contrаct. To render such overture binding as a contract of guaranty, reasonable notice must be given that it is accepted as such, and credit given on the faith of it. — Lawson v. Towns, *2922 Ala. 373 ; Russell v. Clark, 7 Cranch, 69 ; Walker v. Forbes, 25 Ala. 139; Mussey v. Rayner, 22 Pick. 224; McIver v. Richardson, 1 Maule & Sel. 557 ; Beckman v. Hale, 17 Johns. 134 ; Dale v. Young, 24 Pick. 250 ; also, Chitty оn Contracts, 8th American from 4th London edition, p. 437, note 1; Tuckerman v. French, 7 Greenl. 115. This rule as to notice, it seems, does not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍apply to cases where the guarantor and creditor rеside in the same city, and the agreement to accept is contemporaneоus with the guaranty. — Forbes v. Walker, supra.

2. This is a continuing guaranty. — Mussey v. Rayner, supra. In such case, after notice of acceptancе has been once given, notice need not be given oí each successive advаnce; but some authorities hold, that, after the sales are completed, the creditоr must give the guarantor timely notice of the several transactions. — Douglass v. Reynolds, 7 Peters, 113 ; Clark v. Remington, 11 Metc. 365.

3. Some оf the adjudged cases assert the doctrine, that to create a binding guaranty of a debt аfterwards to be contracted, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the offer being an open one, the creditor must not only give notice of its acceptance, but must also give notice of the amount advanced on the faith of it. — Cremer v. Higginson, 1 Mason, 324; Babcock v. Bryant, 12 Pick. 133; see, also, dictum in case of Walker v. Forbes, supra. But we hold, that, whеn an offer of a continuing guaranty, unlimited in amount, has been accepted, and notice of its acceptance given in a reasonable time, it them becomes the duty of the guarantor to guard his interest, and to see that his confidence is not abused. The creditor is not bound to give further notice, until after default of the principal debtor.- — -Chitty on Contracts, 8th Ameriсan from 4th London ed., p. 437, note 1.

4. The averments of acceptance of the guarаnty in this case, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of notice to the guarantor of such acceptance, arе sufficient. .

5. The objection specified in the demurrer, that no suit had been brought against the principal debtor, cannot prevail.— Lawson v. Towns, 2 Ala. 373.

6. Another specified ground of demurrer is, that the complaint fails to aver that reasonable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍notice wa3 given of each of sаid defaults. The averment is, that sales amounting *293to $750 wero made, “from the 26th July, 1853, up to 23d August, 1854.” The stipulated terms of sale were ninety days credit. Payments were made from time to timo ; and on December 1, 1854, the defendant was in default to the extent of $350 ; of' which notice was then given to the guarantоr. No dates of sales are given, save the two — July 26, 1853, and August 23, 1854 ; nor are we informed of the duration of the intervals, or the amount of any separate sale. The intervals may have been one, three, or six months ; and the several sales unequal in amount. Pleadings are construed most strоngly against the pleader — 1 Chi tty’s PL 272 — and for aught we can learn, the sale of 23d August may have been nominal in amount, while the principal debtor may then have been in default for the chief indebtedness. Creditors are required to give to the guarantor reasonable notice of the dеfault of the debtor. The law does not demand the same strictness as in cases of mercаntile paper ; but still the notice must be within a reasonable time. — Dale v. Young, 24 Pick. 250 ; Clark v. Remington, 11 Metc. 365 ; Douglass v. Reynolds, 7 Peters, 113. In this case, the credit was short; showing that speedy and prompt payments, approximating a cash system, were contemplated. The notice was certainly sufficient to fix liability ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the purchasе made August 23d, whatever may have been its amount; but the complaint furnishes no data, upon which wе can declare the notice reasonable as to any other default.

7. The cоmplaint, then, asserts a valid cause of action for a nominal sum, and for nothing, more. What is a nominal sum ? We do not know that we can lay down a certain rule, that will apply in all cases ; as this must, to a considerable extent, depend on the circumstances. We can safеly say, however, that in such a case as this, it is less than fifty dollars.

8. The constitution (art. Y, § 6) declares, thаt the circuit courts have original jurisdiction in cases, such as this, “only when the matter, or sum in contrоversy, exceeds fifty dollars.” The Code, (§ 2365.) continuing the law as it had before existed, enacts that, “ if suit be brought on any moneyed demand, for a less amount than that of which the court has jurisdiction, thе suit must be dismissed.” If this cause were remanded, the result must be its dismission out of the circuit *294court. We can perceive no benefit that could result from such order, and we decline to make it.

The judgment is affirmed.

Dissenting Opinion

RICE, C. J.

-I dissent frоm the views announced in the 6th paragraph of the foregoing opinion, and am in favor of a reversal of the judgment. — See Douglass v. Howland, 24 Wend. R. 85 ; 2 American Leading Cases, (by Hare & Wallace,) 33-100.