61 Minn. 63 | Minn. | 1895
The defendant E. F. Scallen was in the retail fuel business. The plaintiff corporation was in the wholesale fuel business. He desired to purchase wood and coal of it on credit, and procured his brother, J. C. Scallen, to make and deliver to plaintiff, at the time of its date, the following guaranty:
“Minneapolis, Minn., May 10, 1892.
“Lehigh Coal & Iron Company, Minneapolis, Minn. — Gentlemen:
“In the matter of furnishing fuel to E. F. Scallen for his trade, I hereby agree to become responsible for any amount of credit you may give him, and in case he fails to pay you within three months after coal is delivered, I will pay the same.
“Yours truly, J. C. Scallen.”
On the faith of this guaranty, plaintiff sold fuel to E. F. Scallen on credit, on a running account, thereafter 'until April 1, 1893, the amount of such sales being $10,203, of which the sum of $8,901, was paid, leaving a balance due of $1,302. This action, is brought against E. F. Scallen, as principal debtor, and against J. C. Scallen, as such guarantor, to recover said balance due. At the close of the trial the court ordered a verdict for plaintiff for the full amount claimed, and from an order denying their motion for a new trial defendants appeal, but no grounds for reversal as to defendant E. F. Scallen are urged.
It is contended that the court erred in ordering a verdict against J. C. Scallen, for the reason that he was entitled to notice that
There was evidence tending to prove that there was no communication between» the guarantor and guarantee from the time the guaranty was given until about July 10 in the following year. It is urged that it was a question for the jury whether or not the plaintiff gave an unreasonable amount of credit, and continued to sell an unreasonable length of time, on the faith of this guaranty, and that for these reasons it was error to take the case from the jury and order a verdict for plaintiff as against J. C. Scallen. This is a continuing guaranty, in which neither the time it shall continue nor the amount of the guarantor’s liability is stated. Taking it literally, it might continue for 10, 20, or 50 years; and as it is “for any amount of credit you may see fit to give him,” the guarantor
But there are some circumstances from which to determine whether or not the amount of credit attempted to be given on the faith ■of this guaranty was unreasonable. J. C. Scallen testified on his own behalf that, just prior to the time he executed this guaranty, he had a conversation with plaintiff’s agent, Taylor, concerning it: “I said, ‘Mr. Taylor, what would the amount be?’ * * * E. F. was about to extend his business a little, in view of certain contracts. He had certain contracts in view for furnishing coal, ¡and Mr. Taylor and I talked it over, and I asked him what was their way of doing business, and how they settled with their customers. He said it was monthly. He said that he thought three or four hundred dollars would cover it.” It is true that Taylor in his evidence denied this, and stated that “Mr. Scallen said — asked me if the amount would amount to a thousand dollars, and I said to him it probably would, and more.” But whether or not Scallen’s statement was true was a question for the jury. It is true that this evidence cannot be given the effect of contradicting the terms of the written guaranty. Its only effect is an admission as to what would be a reasonable limit of credit from time to time in the business of E. F. Scallen; and many other extrinsic facts and circumstances would have been equally competent as evidence to prove that fact. See Roberts v. Mazeppa Mill Co., 30 Minn. 413, 15 N. W. 680. It is also true that the language of the guaranty, “I agree to become responsible for any amount of credit you may give him,” must be given due weight. . But, as already stated, even
As the appellants failed to file their paper book and points and authorities, and the respondent failed to file its points and authorities, with the clerk of this court three days before the day of argument, as provided by subdivision 1 of rule 9 of this court, as amended at the last term, none of the parties shall tax statutory costs. The parties attempted by stipulation to dispense with compliance with this rule. But this amendment to this rule was made for the benefit of the court, not of the counsel or parties, and cannot be so dispensed with.
Collins, J., absent, did not sit.