271 P. 353 | Cal. Ct. App. | 1928
Plaintiffs had judgment for the sum of $500, from which judgment the defendant appeals.
The action is founded upon a written guaranty in the words and figures following, to wit:
"Stockton, Calif., May 5, 1926.
"Kierulff Ravenscroft,
"Dear Sirs,
"Following is a list of property owned by me described for the purpose of establishing my husbands credit with you who is the owner of the radio store known as the Stockton Radio Shoppe; 1 apartment house, value $31,000 at 437 E. Fremont St., Stockton (1/4 interest); 1 22-acre ranch value $6500, six miles E. of Stockton on The Linden Road, (1/2 interest); 1 4-room bungalow at 150 Ramona St., Stockton, value $2700 (sole owner).
"Following is a list of the mortgages:
Apt. house ..................................... $12000 Ranch .......................................... $ 2500 House .......................................... $ 1400
"I hereby guarantee Mr. Koping's account to the amount of $500 Five hundred dollars.
"Signed, TRESA E. KOPING."
The transcript shows that at and prior to the execution of this guaranty, V.G. Koping, the husband of the defendant, was conducting a radio shop or store in the city of Stockton, *475 and that he desired to place in the store certain radio equipment or merchandise kept and sold by the plaintiff. It appears that this merchandise could only be handled by regularly licensed dealers, or at least was only sold to and through regularly licensed dealers. It further appears from the transcript that the plaintiffs, before selling such merchandise to the said V.G. Koping, desired some guarantee as to his credit, not being satisfied with V.G. Koping's credit rating as it theretofore existed. In pursuance of the understanding had between the plaintiffs, V.G. Koping and the defendant, relative to the sale and purchase of such radio equipment, the defendant signed the foregoing written guaranty, which guaranty was forwarded to the plaintiffs by the said V.G. Koping. Thereafter, and during the course of the business conducted by the said V.G. Koping, he ordered and received from the plaintiffs several hundred dollars worth of radio merchandise, leaving, on October 7, 1926, a balance due the plaintiffs of the sum of $600. During the course of the business conducted by the said V.G. Koping and his dealings with the plaintiff, it appears that he paid on account of merchandise purchased from them the sum of $542.
The action herein is founded upon the theory that the writing executed and delivered by the defendant to the plaintiffs is a continuing guaranty.
Some minor objections are urged by the defendant as a reason for ordering a reversal of judgment, but these objections all appear to be answered by the provisions of our Civil Code. [1]
In the first place it is urged that the record shows no acceptance of the guaranty executed and delivered by the defendant. Section
In the case of Lean v. Geagan,
In the case of Nason Co. v. Kennedy,
[4] In the annotation to the case of Scovill Mfg. Co. v.Cassidy, Ann. Cas. 1918E, page 611, appears a long list of cases, so many as to prohibit their being set forth herein, supporting the following statement: "Where, by the terms of the guaranty, it is evident that the object is to give a standing credit to the principal, to be used from time to time, either indefinitely or for a certain period, it is generally deemed a continuing guaranty." [5] And, further: "Whether a contract of guaranty is a continuing undertaking, is a question of intention which must be gathered from the instrument itself or from the course of dealing between the parties, or from both. If it appears that a future course of dealing for an indefinite time, or a succession of credits to be given, was contemplated by the parties, the contract will be construed to be a continuing guaranty." It is further held that the mere fact that the person for whose benefit and credit the guaranty is executed in the course of his dealings, has bought and paid for more goods than the amount specified in such instrument, does not discharge a continuing guaranty. On the other hand, as stated in 28 C.J. 959: "Where a guaranty contains no express limitation as to either time or amount, and there is nothing in the instrument itself from which it can be inferred that it was a guarantor's intention to leave it open as to both, the guaranty will generally be understood as referring to a single transaction," etc. [6] In the instant case there is a limitation as to the amount, and, therefore, subject to the rule stated in the same volume *479 on page 960: "Where the guaranty contains a limitation as to the amount for which the guarantor will be bound, but contains no limitation as to time, and there is nothing in the circumstances surrounding the execution of the contract to evince a contrary intention, it will in general be construed to be a continuing guaranty and operative without limit, except as to the amount of the liability, until revoked. The limitation mentioned in such a guaranty has reference to the amount of a guarantor's liability, and not to the amount of dealing between the principal and the guarantee," etc. Likewise, as appears on page 961 of the same volume: "Although the amount is limited, the liability under the guaranty will be regarded as continuing when, by the terms of the contract, it is evident that the object is to give a standing credit to the principal debtor, to be used from time to time either indefinitely or until a certain period," etc. This latter statement coincides precisely with the circumstances presented in the instant case, to wit, the giving of a standing credit.
[7] While the subject of construction of guaranties has received considerable attention, it is now held that an instrument of guaranty is to be construed like any other instrument, neither to limit nor to extend the terms of the instrument under or beyond the intention of the parties, but to effectuate the purposes for which the writing is executed. (See note to Scovill Mfg. Co. v. Cassidy, Ann. Cas. 1918E, 609.) That the writing in the case at bar was intended to be a continuing guaranty is further shown by the size of the merchandise order of V.G. Koping, at the time of the execution of the instrument. That order shows a purchase of merchandise in the value of only $85.70, and it is not reasonable to hold that the guaranty in the sum of $500 was executed simply to cover that specific order, or any other particular specific order, and if such is not the case, then it necessarily follows that the purpose of the instrument was to establish the credit of V.G. Koping, and charge the defendant with liability for his dealings with the plaintiffs to the extent, at least, of the sum of $500.
While the objection has been raised, we find nothing in the record which indicates a purpose or intent to vary the terms of the written instrument, though the record does *480 contain testimony disclosing the intent of the guarantor, just as set forth in the writing signed by her.
The judgment is affirmed.
Hart, J., and Finch, P.J., concurred.