93 F. 171 | 7th Cir. | 1899
after making the foregoing statement, delivered the opinion of the court.
í -The réfusal;of the court to permit the witnesses to answer the questions propounded; it is urged, on the 'opinion of this court in U. S.
This brings us to the inquiry whether the evidence shows beyond question that the plaintiffs did in fact accept the guaranty, and so perform the consideration therefor, by “extending credit,” as to be entitled to maintain this action. It is not important to enter at large into the distinction between contracts of guaranty which, in order to become mutually binding, must have been accepted, and those which, from the beginning, are unconditional. Like other contracts, a guaranty requires the concurrent assent of the minds of the parties; and, as the doctrine has been applied by the supreme court of the United States, proof of acceptance by the guarantee, or of notice thereof to the guarantor, is required, because “deemed essential to an inception of the contract.” It is so declared in Davis v. Wells, 104 U. S. 159, where the following language, employed in Manufacturing Co. v. Welch, 10 How. 461, 475, is reaffirmed: “He [the guarantor] has already had notice of the acceptance of the guaranty and of the intention of the party to act under it. The rule requiring this notice within a reasonable time after the acceptance is absolute and imperative in this court, according to all the cases. It is deemed essential to an inception of the contract.” The contract under consideration, it is evident, did not take effect upon delivery to Beck. It is not shown, nor to be presumed, that he had authority to accept it. In his hands, to quote the brief for defendant in error, “it was a mere ‘projet’ until ratified by Mayaud Freres”; and it does not appear that he sent to them the writing, or a copy of it. They knew simply what he wrote them, and on that information, it is conceded, they were not satisfied with the arrangement, and on March 17, 1898, wrote Hoffmann Bros. Company the letter of that date. The letter contained no mention of the guaranty, and, if any inference on the point is to be drawn, it is of repudiation rather than of acceptance. The proper course for the guarantees would have been to write to the guarantors individually, informing them whether the guaranty had been or would be accepted and acted upon. But the guarantors are shown to have been in charge of the business of the corporation, and to have conducted or known of the correspondence, and if, in the letter addressed to the corporation, it had been stated that the guaranty had been received and accepted, it would, of course, have been equivalent to a like statement to the guarantors directly. The plaintiffs not only did not accept the guaranty, or approve the arrangement made and reported by Beck; they insisted upon a remittance of