Keith, Peck & Co. v. Dwinnell, 38 Vt. 286

Keith, Peck & Co. v. Dwinnell

38 Vt. 286 | Vt. | 1865

The opinion of the court was delivered by

Wilson, J.

1. It is insisted by the defendants’ counsel that the guaranty was exhausted by the first delivery of goods under it, and that the defendants never became holden for any part of the amount, except the $53.03. The inducement to the guaranty is fully expressed in the instrument. When a contract is reduced to writing and its language is doubtful or susceptible of two senses, that is to be taken which would give effect to the contract according to the in-lent of the parties. The situation of Wilson, for whose benefit the guaranty was executed, the language of the guaranty, and the object to be attained by it, show what must have been the understanding of the parties. The defendants in their guaranty say : “ Mr. Lyman Wilson wishes to buy stock for his shop and pay in six months-or before. We will be surety for him for a sum not to exceed one hundred dollars.” There is nothing in the guaranty which shows that *292stock to the full extent of the obligation should be obtained at a single purchase. Wilson might not want the whole amount at one time, or the plaintiffs might not be in a situation to deliver it; and we think it could not have been contemplated by the parties, as a condition on which the defendants’ liability to the extent” of $100. should attach, that the whole amount should have been delivered at one time. The plaintiffs were authorized to deliver stock to the amount of $10(3. on the credit of the guaranty, they had a right to deliver the same from time to time, within a reasonable time from its date, and it appears that the stock to the extent of the guaranty was delivered within such reasonable time.

2. In regard to the application of payments we think the rule adopted by the county court is correct. The general rule that the first payment should be applied to pay the first items of charge is not applicable to this case. It appears that Wilson desired further supplies for his shop, and made arrangements with the plaintiffs to furnish them. • He agreed to deliver, and from time to time did deliver, to the plaintiffs bark and other property for which they agreed to pay him in goods. It was under that agreement that the balance on the new account from the plaintiffs to> Wilson accrued. That agreement was wholly distinct from the contract out of which the defendants’ liability arose, and the plaintiffs were not bound to apply such property as was named in the new agreement in satisfaction of their claim against the defendants, which had already become a money debt. It is urged by the defendants that the new agreement, having been made without their knowledge, operated to their prejudice, by reason of which they claim they were released from their obligation. The new agreement, between Wilson and the plaintiffs, was in its inception nothing more than a proposition on the part of Wilson to the plaintiffs to buy of them goods, and pay the plaintiffs for the goods in the kind of property named. It did not contemplate that Wilson should deliver property in advance of receiving the goods. It was at most a mere offer on the part of Wilson to pay for the goods at the time he received them, in such property as he then named to them that he would procure. It was entirely optional with Wilson, as well as with the plaintiffs, whether they would even commence trading under that arrangement, and it became oper*293ative only as an agreement as to the manner of payment for the property or .goods, which either party might thereafter voluntarily purchase of the other. There is nothing in the case which shows that the agreement was made in bad faith, or to avoid any right or debt of the defendants, and it does not appear that the agreement lessened the means of Wilson for paying his debts, nor does it appear that the defendants were in any manner affected by it. The balance due from the plaintiffs to Wilson for the property delivered was payable in goods. It is obvious that he could not have compelled payment of that balance in money, nor an application of it upon the defendants’ guaranty without proof of a demand for the goods and neglect to deliver them. The county court treated the balance due Wilson for the property as an equitable claim -in favor of the defendants, and allowed it as payment on their guaranty, which was all the defendants could reasonably claim.

3. The defendants had due notice of the acceptance of their guaranty by the plaintiffs, and of the delivery of goods on the credit of it. The sufficiency of notice to a guarantor of non-payment must depend upon the circumstances of the case. The defendants and Wilson then resided in the same village, and the plaintiffs resided in another town. At the date of the guaranty, Wilson was making arrangement to open a shop and commence business in the village where the defendants resided. He had received assurances from the defendants that they would assist him in the purchase of stock. They were acquainted with his circumstances, and could easily obtain information as to his progress in business and as to his means of paying his debts. In December, 1861, the defendants had notiee that goods to the full amount of their guaranty had been delivered to Wilson upon their credit. They also had notice at that time that the plaintiffs had charged the goods directly to them, to whom the plaintiffs should look for payment. Wilson from that time to the period of his death continued to carry on the business in the same village in which the defendants resided, and it would seem they must have had better means than the plaintiffs had of obtaining information as to the ability of Wilson to pay the debt. Whether Wilson at the expiration of the six months from the date of the guaranty had property upon which the plaintiffs could have secured their claim *294does not appear, but it does appear that from sometime in tbe spring of 1862 to and at bis decease be had tbe required amount of property for that purpose. The defendants were not, by any act or declation of Wilson or the plaintiffs, kept in ignorance of tbe non-payment of tbe claim. The fact that Wilson sent bark to Montpelier would hardly justify tbe conclusion that it was delivered to tbe plaintiffs on the defendants’ guaranty, when tbe defendants bad reason to believe that Wilson continued to obtain supplies for bis shop of the plaintiffs. There is nothing in the case which shows that the defendants sustained any loss or damage in consequence of the neglect of the plaintiffs to give formal notice, at the time the guaranty fell due, of its non-payment. We think, under the circumstances of the case, the county court could properly find that the notice of non-payment was sufficient. The facts found by the county court in respect to this branch of the case render it unnecessary for us to discuss the subject of notice to a guarantor, as involved in many of the reported cases.

Judgment affirmed.