Kepley v. Carter & Suggs, 49 Kan. 72

Kepley v. Carter & Suggs

49 Kan. 72 | Kan. | 1892

Opinion by

Green, C.:

This was an action brought by Carter & Suggs against R. B. Kepley and V. Kaczynski upon a written contract, by the terms of which the former agreed to deliver 2,000 loads of sharp river sand to Kepley for the agreed price of 65 cents a load. The sum of $500 was agreed upon as liquidated damages to be paid by the party failing to comply with the terms and conditions of the contract. Kaczynski signed the following guaranty for Kepley:

“In consideration of the premises above set forth, I do hereby guarantee that the said party of the first part will pay to said second parties the sums of money specified as they shall become due. Y. Kaczynski.”

The plaintiffs below asked for damages against both defendants in the sum of $6,175 for a breach of the contract; $32.50 for sand delivered and not paid for, and $500 as liquidated damages. Kepley and Kaczynski each filed separate answers. The former alleged that the plaintiffs had delivered inferior sand, by which he had been damaged in the sum of $500; that he had paid for all the sand delivered to him. The latter alleged in his answer that the defendant Kepley had paid for all sand delivered, and that by reason of such payment he was not liable for any other sum or amount upon the contract. The plaintiffs only replied to the answer of Kepley. The case was tried by the court and a jury, and resulted in a verdict and judgment for the plaintiffs for $267.50. The plaintiffs in error bring the case here upon a number of assignments of error.

It is first urged that no judgment could be taken against Kaczynski, because the plaintiffs failed to reply to his answer, and that the court erred in saying to the jury, “that the plain*79tiffs deny all of the allegations contained in the answer of both defendants inconsistent with the allegations contained in plaintiffs’ petition.” The answer to this assignment of error is, that the defendant Kaczynski waived the filing of a reply by proceeding to trial without objection, and he cannot now complain. (Cooper v. Machine Co., 37 Kas. 231.) The court refused to give the following instruction: “If Kepley has paid for all the sharp river sand delivered, the defendant Kaczynski is not liable in this action.” This, or some similar instruction, should have been given. Kaczynski obligated himself to pay to Carter & Suggs the sums of money specified, as they should come due. Under a fair construction of this language, what is understood to be covered by the sums specified in the contract? Could it mean anything more than the price of the sand? It is true that the sum of $500 is agreed upon as fixed and liquidated damages, to be paid by the failing party, but we do not think this is covered by the guaranty. Kepley agreed to pay 65 cents a load for the sand, less 10 per cent, upon the completion of each block, and the remaining 10 per cent, upon the delivery of the entire quantity specified in the contract. This payment, in our opinion, is what the guaranty given by Kaczynski covered. His obligation was not that Kepley would perform all of the conditions of the contract, but that he would pay the sums specified as they should become due. It would not be presumed that there would be a failure upon the part of either of the contracting parties. So we think the guaranty, by the fair intendment of the language used, did not include the payment of liquidated damages. Text-writers and courts have clearly enunciated the doctrine that the liability of a guarantor is not to be extended beyond the precise terms of his obligation. It will not be implied that he agreed to do more than was expressed in his contract. “It is now too well settled to admit of doubt that a guarantor, like a surety, is bound only by the strict letter or precise terms of the contract of his principal, whose performance of it he has guaranteed; that he is in this respect a favorite of the law, and *80that a claim against him is strictissimi juris.” (Kingsbury v. Westfall, 61 N. Y. 356; Mining Co. v. Kunnel, 87 Ind. 560; 1 Brandt, Suretyship and Guaranty, § 93.)

It has been held by this court that the liability of* sureties cannot be extended by implication, and they have the' right to stand on the exact letter of their contract. (Henrie v. Buck, 39 Kas. 381; Edwards v. Ellis, 27 id. 344; Hays v. Closon, 20 id. 120.) As the judgment of the district court must be reversed as to the plaintiff in error Kaczynski, we do not consider it necessary to consider the other assignments of error, as his rights are more diretftly affected, and there is no material error apparent in the record as to the other plaintiff in error. It is recommended that the judgment of the district court be reversed as to the plaintiff in error Kaczynski, and that a new trial be granted him; and that the judgment be affirmed as to the plaintiff in error Kepley.

By the Court: It is so ordered.

All the Justices concurring.