155 Mich. 272 | Mich. | 1908
(after stating the facts). It was the contention of the plaintiff in the case that the undertaking in question, its execution and delivery being admitted by the defendant, rendered the defendant liable to plaintiff in the amount of the conceded balance. The defendant urged: (a) That the undertaking was no more than an offer on the part of defendant to become surety for. Mr. Kimmel, and that, before the defendant could be bound, it was necessary that the Free Press company should notify him of its acceptance of him as guarantor; and (6) that, in any event, the amount of the defendant’s liability was limited to the sum of $500, and inasmuch as Kimmel paid for all the papers sent him in 1901, 1902, 1903, 1904, and 1905, a sum largely in excess of $500, the defendant’s liability under the guaranty was canceled. If, as contended by the plaintiff, the writing sued upon is not a collateral but an original promise, it is entirely obvious that the defendant’s liability thereunder is limited to the sum of $500, and inasmuch as Kimmel bought and paid for several thousand dollars’ worth of papers since the execution of the undertaking, his liability thereunder would clearly be at an end. We think the true construction of the undertaking is that it is a collateral guaranty. The situation of the parties indicates that it was the desire of the Free Press to have security from Kimmel for the payment of such papers as it should sell him (Kimmel). It was Pattengill’s object to furnish such security. The undertaking therefore must be construed as a guaranty, and, under the rule laid down in De Cremer v. Anderson, 113
Was there such notice in this case? A careful examination of the record fails to disclose either notice or knowledge on the part of the defendant of the acceptance of his undertaking. It is true that he knew that Kimmel was receiving papers from the Free Press Company, and it is likewise true that for a time he received a copy of the Free Press gratuitously from Kimmel; but we do not think that either of these circumstances is sufficient to constitute notice to him of the acceptance of his undertaking. In the case of Davis Sewing Machine Co. v. Richards, 115 U. S. 524, it is said:
‘ ‘ If the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guaranty is, in legal effect, an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.”
We are unable to see in what particular the undertaking here sued upon differs from the guaranty described above. It was not signed by Pattengill at the request of plaintiff, no consideration passed from the plaintiff to Pattengill or was acknowledged in the undertaking, it was not accepted by the plaintiff at the time it was given, the Free Press company did not accept it until it had satisfied itself of the responsibility of Pattengill, and no notice of its acceptance was ever given Pattengill., nor, under the facts of the case, is he chargeable with knowledge of its acceptance.
Judgment is affirmed.
