120 N.W. 1094 | N.D. | 1909
In the month of March, 1905, plaintiff, Emerson Manufacturing Company, a manufacturer of farm implements at Rockford, 111., entered into the usual contract with defendant Tvedt, Whereby the latter, who was a local dealer in farm machinery at Kindred, this state, ordered from plaintiff certain machinery at stipulated prices, to be shipped to Kindred, and said defendant was given the exclusive sale during said season of such machinery in the .territory tributary to Kindred and other designated points near there. Upon the back of the printed order the respondent, Rustad, signed the following guaranty: “In consideration of one dollar to me in hand paid by. Emerson Manufacturing Company, the receipt -of which I hereby acknowledge, I 'hereby guar
The learned trial court no doubt considered the instiument which respondent signed as a mere offer of guaranty, and not an absolute guaranty, and hence, under the well-established rule recognized by this court in Standard Sewing Machine Co. v. Church et al., 11 N. D. 420, 92 N. W. 805, no liability arose thereunder, because plaintiff failed to notify Rustad of its acceptance of and reliance upon the same. This was clearly erroneous. The instruments in these cases are widely different, and such difference is plainly pointed out by the authorities hereinafter cited. The guaranty in the case at bar recited a consideration moving directly from plaintiff, the guarantee, to Rustad, the guarantor, and this is held sufficient everywhere to show an absolute contract of guaranty, as distinguished from a mere offer of guaranty. As stated by eminent authority, “a contract of guaranty, like every other contract, cam only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him. of a valuable consideration, however small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use completes the contract.” Machine Company v. Richards, 115 U. S. 524, 6 Sup. Ct. 173, 26 L. Ed. 480. Nor is the fact that the consideration was merely nominal, or not in fact paid, at all material. Lawrence v. McCalmont, 2 How. 426, 11 L. Ed. 326; Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686. In addition to the above authorities, see,
Judgment reversed, and new trial ordered as to respondent Ru's-tad.