126 P. 325 | Utah | 1912
The plaintiff, a Pennsylvania corporation, seeks to recover from the defendant on an alleged guaranty for future obligations of the Daynes & Romney Piano Company, a Utah corporation, at Salt Lake City. The case was tried to the court on an agreed statement of -facts. The defendant had judgment, from which the plaintiff appeals.
Its contention is that on the agreed facts it, and not the defendant, was entitled to j’udgment. The substance of the agreed statement is:
In March, 1904, the defendant was a stockholder and an officer of the Daynes & Romney Piano Company, which had been doing business with the plaintiff in purchasing pianos from it. At thait time Pressey, a representative and an officer of the plaintiff, and under instructions from it, informed D'aynes, the manager of Daynes & Romney Piano Company, that the plaintiff would require security for the payment of future goods sold on “terms of one-quarter each, four, eight,
It will be observed that the plaintiff in this, as in the letter to Daynes & Romney Piano' Company, while thanking the defendant for the “esteemed1 patronage” and “for the kindly good will expressed” by him, yet remained silent as to that portion of the defendant’s letter relating to the alleged guaranty. This seems to have been intentional, for on May 4th Pressey, on behalf of the plaintiff, wrote Daynes & Romney Piano' Company, expressing plaintiff’s dissatis,-faction with that portion of the defendant’s letter, and the thought that the defendant by the language employed1 — “I can guarantee” — had merely expressed1 his ability to become guarantor, but in effect had not guaranteed anything, and had made no direct promise to do so. Thereupon Pressey inclosed a draft of a guaranty prepared by himself, and requested it to be presented to' and signed1 by the defendant and returned as and for the guaranty, instead of the defendant’s letter. The proposed draft was not presented to the defendant; the manager of Daynes & Romney Piano Company writing plain
In February, 1905, the defendant sold to Daynes all his stock and interest in Daynes & Romney Piano Company and resigned! as an officer thereof. Pressey, the representative and an officer of the plaintiff, was so notified by Daynes. In January, 1906, Daynes & Romney Piano Company amended its articles of incorporation and changed its name to Davnes-Romney-Music Company. The new company continued to do business with the plaintiff, and purchased goods of it, as had theretofore D’aynes & Romney Piano Company. The goods, the value of which it is sought to recover in this action, were furnished and sold, not to D'aynes & Romney P'iamo Company, but to Daynes-Romney Music Company, between October, 1906, and November, 1901, and for which Daynes-Riomney Music Company had given its several promissory notes, nineteen in number, amounting in the aggregate to $3899, due on different dates between February and December, 1908. Daynes-Romney Music Company, unable to meet the notes at maturity, requested ian extension of time, which request the plaintiff refused, and asked Daynes-Romney Music Company to obtain the defendant’s indorsement on the notes. Thi3 Daynes-Romney Music Company declined to do, stating: “As you have been already informed, he (Romney) severed his connection with our firm several years ago and has nothing whatever to do with it.” Further correspondence between the plaintiff and Daynes-Romney Music Company with respect to a settlement and! payment of the account was had; but no correspondence or communication was had with the defendant, nor was notice given him of goods, or the amount
Upon these facts the court stated conclusions of law:
“1. That the defendant’s letter, upon which this action is based, does not constitute a guaranty.
“2. That said letter, sued upon as a guaranty by the plaintiff, was never accepted by the plaintiff, nor- relied upon by said plaintiff.
“3. That no reasonable notice was given the defendant by the plaintiff of the amount of credit extended, nor of the default of the principal debtor to pay its indebtedness when due.
“4. That the indebtedness represented by the notes sued on herein was not incurred by the Daynes & Romney Piano Company, the company referred to in defendant’s letter, but by the Daynes-Romney Music Company.”
These conclusions are assailed. It is not necessary to determine whether all of them are justified, for under the facts we are of the opinion that (1) a notice of acceptance’ by the plaintiff of the guaranty was essential to a completed contract, and (2) that the goods, the value of which it is sought to recover from the defendant on the alleged guaranty, were not sold to the company whose obligations the defendant had proposed to gniarantee..
“A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him óf a valuable consideration, however small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use completes the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them, except future advances to be made to the principal debtor, the guaranty is in legal effect an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.”
*447 “Tie name is an indispensable part of the constitution of every corporation, the knot of its combination, as it has been called, without which it cannot perform its corporate functions.”
1 Cook on Corporations (6 Ed.), sec. 15.
In tbe iabsence of evidence, it will not be presumed' tbat Daynes & Romney Piano Company and Daynes-Romney Music Company were one and tbe same company, or composed of tbe same persons, managed by tbe same officers, and engaged1 in thé same business. Tbe plaintiff bere was tbe actor. It alleged, and it was found, tbat Daynes & Romney Piano Cbmpany amended its articles and changed its name to Daynes-Romney Music Company. Rut no averments are made, and no facts found, tbat tbe two companies were one and tbe same company, or tbat botb were composed of tbe same persons, managed by tbe same officers, engaged in tbe same business, or tbat there was no change in tbe composition or operation of tbe company, or that tbe one succeeded to tbe property rights, franchises, and privileges, of tbe other. Without some such allegations and proof, tbe identity of tbe two companies cannot be presumed, and, until tbat is shown, proof tbat goods were sold to tbe Daynes-Romney Music Company and that it defaulted does not show a liability under tbe guaranty given to answer for tbe default of Daynes & Romney Piano Company.
Eor these reasons, we think tbe judgment of tbe court below was right, and it therefore is affirmed, with costs.