39 Fla. 621 | Fla. | 1897
'The only error assigned is based upon the ruling of ’•the Circuit Court denying plaintiffs’ motion for a new trial. This requires us to determine whether the evidence was legally sufficient to sustain the verdict. The •issues tried in the court below were evidently framed .upon the theory that the paper sued upon was, upon its face, an offer of a continuing guaranty for the debts of McDaniel, requiring notice of its acceptance and notice of advances made or goods sold under it, in order to bind the defendant. It is here insisted by appellants that this paper was of such a character that no such notices were required. If this be true, issue should not have been joined upon the second ■plea, but its sufficiency should have been tested by •demurrer, or in some other appropriate manner. Hood vs. French, 37 Fla. 117, 19 South. Rep. 165; Clyde S. S. Co. vs. Burrows, 36 Fla. 121, 18 South. Rep. 349. We shall, therefore, treat the paper as an offer ■of a continuing guaranty, requiring notice of acceptance and notice of advances made or goods sold under it, in accordance with the issues tried by the court «below.
I. Two questions were presented for the consideration of the jury by this second plea: First, did defendant have notice of plaintiffs’ acceptance of the offer of guaranty? Second, did defendant have notice ■ of advances made or goods sold by plaintiffs in reliance upon such guaranty? There was no evidence whatever to justify a negative answer to these questions, such as the jury necessarily gave by their verdict First: Plaintiffs’ agent testified that on April 16, 1887, he sold McDaniel a bill of goods for cash,
Second: The defendant tes tided, without contradiction, that in the latter part of December, 1887, at the-time of McDaniel’s failure, plaintiffs’ agent told him that plaintiffs held his guaranty for what McDaniel was owing them, and he asked the agent to send him a copy of the account and of the written guaranty. He does not deny receiving these papers as requested, by him. His agreement with plaintiffs was still in force on that date, never having been revoked either in person or in writing. This was notice to defendant that plaintiffs had made advances or sold goods to-McDaniel upon the guaranty. The defendant did not claim, either in his plea or testimony, that any injury resulted to him from a failure to give earlier notice.. Treating the paper as a continuing guaranty, no duty devolved upon the plaintiffs to notify defendant of' particular purchases under it; nor in the absence of a stipulation to that effect in the agreement, to render statements of McDaniel’s account to defendant. Their whole duty would be performed by notifying defendant of the amount due, within a reasonable time after all transactions with McDaniel based upon the guaranty were closed, and even then if no injury resulted to defendant from a failure to give such notice, the-omission would not bar recovery. Cremer vs. Higginson, 1 Mason, 323; Wildes vs. Savage, 1 Story, 22; Douglass vs. Reynolds, 7 Pet. 113, text 126; Davis vs.
II. The evidence disclosed a valid consideration for the agreement. True, the defendant testified that he “never received a cent” from plaintiffs or McDaniel for entering into the guaranty. We said in Robinson vs. Hyer Bros., 35 Fla. 544, 17 South. Rep. 745, that “a consideration emanating from some injury or inconvenience to the one party, or from some benefit to the other, is a recognized legal consideration.” If A, for the purpose of strengthening the credit of B, agrees with C to become responsible for goods to be sold in the future by C to B, .and C accepts the agreement and acts upon it by selling goods to B, there is every element of a valid consideration; because C has parted with his property upon the faith of A’s promise, and B, at M’s express or implied rejuest, has obtained a benefit by means of such promise. Applying this principle to the facts of this case, if the promise of the defendant was made before the obligation of McDaniel was incurred, and entered into the inducement for giving the credit to McDaniel, the defendant’s undertaking was founded upon a valid consideration. 1 Parsons on Contracts (8th ed.), pp. *450, *451 and notes; Train vs. Gold, 5 Pick. 380; Bickford vs. Gibbs, 8 Cush. 154; Williams vs. Perkins, 21 Ark. 18; Beakes vs. Da Cunha, 126 N. Y. 293, 27 N. E. Rep. 251; Wellington vs. Apthorp, 145 Mass. 69, 13 N. E. Rep. 10.
The evidence was positive and without conflict, that
There being no evidence to sustain the verdict, the judgment of the Circuit Court is reversed and a new trial granted.