39 So. 988 | Ala. | 1905
This case was tried in the court below without a jury on an agreed statement of facts, by which the issue was determined on the construction of a contract of guaranty made by the Alabama National Bank of Birmingham to the Manatee County State Bank. The said contract of guaranty was as follows: “Birmingham, Ala., Nov. 27,1899. Manatee Co. State Bank, Palmetto, Fla. — Dear Sirs: We guarantee the payment of drafts for six cars of oranges at $2.25 per box, to be shipped by McLean & Sims to Williams & Marks or to W. & M. direct; provided each B. L. be accompanied by a certificate that oranges were sound when loaded and shipped according to signed contract between McLean & Sims and Williams & Marks. Williams & Marks to be allowed a rebate of 5 cents per box and drafts to come direct to us. Yours truly, (Signed) W. A. Porter, Cashier.” The six cars mentioned were shipped and paid for and afterwards, Williams & Marks wishing to purchase four more cars of oranges, the Alabama National Bank wired the Manatee County State Bank as follows: “We guaranty four cars of oranges McLean & Sims, conditions as last six.” These four cars were accordingly shipped, and Williams & Marks refused to pay the drafts for three of the car®, on the ground that McLean & Sims had not complied with their contract, and notified the Alabama National Bank that it must not pay the drafts, and that, if it did so, they (Williams & Marks) would refuse to recognize or ratify such payment. Accompanying three of the bills of lading for the first- six cars of oranges were certificates of McLean & Sims stating, in substance, that the oranges were sound and according to contract. The
The rule seems to be well settled in this state that the contract of a surety or guarantor must be strictly construed according to’ the letter of the undertaking. The surety has a right to- stand upon the terms of his contract, and it cannot without his assent be changed in any respect. To the extent and in the manner stated in his contract he is bound, and no further. — May v. Alabama National Bank, 111 Ala. 510, 20 South. 459; City Council of Montgomery v. Hughes, 65 Ala. 204; Anderson v. Bellenger, 87 Ala. 336, 6 South. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46; Crescent Brewery Co. v. Handley, 90 Ala. 486, 7 South. 912. See, also, Miller v. Stewart, 9 Wheat, (U. S.) 680, 6 L. Ed. 189; 14 Am. & Eng. Ency. Law (2d Ed.) 1144. In Miller v. Stewart, supra, it is said: “Nothing can be clearer, upon both principle and authority, than the doctrine that the liability of the guarantor is not to be extended by implication beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation he is bound, and no further It is not- sufficient that he may sustain no injury by the change in the contract, or even that it may be for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it, and a variation is made, it is fatal.” Under the doctrine laid down in the above case, and applying the principle there stated to the guaranty executed by the' Alabama National Bank to the Manatee County State Bank, it clearly appears that the condition of the guaranty was not complied with in the three certificates in controversy. The guaranty was conditional, as well as special. The
The trial court rendered judgment in favor of the defendant, which ruling was in accord with the views we have above expressed, and the judgment will therefore be affirmed.
Affirmed.