78 Mo. App. 670 | Mo. Ct. App. | 1899
This is an action on a contract of guaranty. The trial court sustained a demurrer to plaintiff’s evidence and it appealed.
“In consideration of the appointment or retention of the above party as agent of Deering Harvester Co., for the sale of its Harvesters, Binders, Reapers, Mowers, Trucks, Extras, Twine and other property in certain territory, the undersigned jointly and severally guarantee the fulfillment by said agent of all his obligations and duties growing out of and relating to such agency or otherwise that now or hereafter may exist, and we agree to pay said Deering Harvester Co. or its successors all damages it or they may sustain by reason of any default of said agent; that the written acknowledgment of, or a judgment of any court against said agent, shall in every respect, bind and be conclusive against the undersigned, their heirs, and representatives; and that the liability hereby created shall not be waived, modified or canceled by any extension of time to1 pay or keep any part of said obligations or duties, or otherwise, nor accept by surrender to us of this guaranty and agreement, or by ■indorsement hereon by Deering Harvester Co. at their home •office in Chicago, showing release or fulfillment hereof.”
On May 20, 1895, the plaintiff indorsed its acceptance ■at Chicago, as above provided for. The petition does not ■charge that defendant had any notice of the acceptance thus made by plaintiff, and it was conceded at the trial that he had not.
It is however contended that there was sufficient evidence of notice to defendant of acceptance to have carried the case to the jury. We are of the opinion that in the state of the record before us, there is no merit in this contention. The judgment is affirmed.