90 So. 730 | Miss. | 1921
delivered the opinion of the court.
The appellant brought suit against J. L. Prine, W. M. Prine, Jr., and B. P. Slay, for goods sold to J. L. Prine by the appellant on a written guaranty signed by W. M. Prine, Jr., and B. P. Slay. The account was itemized and verified by affidavit, and is made an exhibit to the declaration, as
“For and in consideration one dollar, to us in hand paid by McConnon & Co., the receipt whereof is hereby acknowledged, we hereby jointly and severally guarantee, absolutely and unconditionally at all times, payment at Winona, Minnesota, of any indebtedness to the said Mc-Connon & Co., hereafter incurred by or for John Leonard Prine of Weathersby, state of Mississippi, by reason of the sale of goods, wares, merchandise and equipment to him, from time to time, by the said McConnon & Co., regardless of his ability or willingness to pay and we hereby waive notice of any default by the said John Leonard Prine and, consent to any extension by McConnon & Co. of time of payment by him.
“This undertaking shall be an open one and shall so continue at all times without respect to residence or location of business of the said John Leonard Prine until revoked in writing by us, the undersigned sureties, notice of revocation to be served on the said McConnon & Co. at its office in Winona, Minnesota.
“It is- understood that there are no conditions or limitations to this undertaking,*except those written or printed herein, at the date hereof, and that after execution no alteration, change or modification hereto shall be binding or effective, unless executed in writing signed by ourselves and McConnon & Company under the corporate seal of said Company.
“In witness whereof, we have hereunto set our hands and seals at Winona, Minnesota, this 9th day of* July, 1919.”
The declaration averred that the goods were sold to J. L. Prine after their receipt of said guaranty, and that said defendants were jointly and severally liable to the plaintiff. The declaration failed to aver that notice of acceptance was given the guarantors before the furnishing of said goods. The declaration ivas demurred to by W. M. Prine, Jr., and B. P. Slay, and the defendant J. L. Prine filed a counter affidavit, denying the item sued on, and
We think the guaranty constitutes an obligation without condition or limit other than that stated therein, and that the real consideration was the sale and shipping of articles to J. L. Prine, and that the recited consideration of one dollar does not preclude the plaintiff from stowing the real consideration, and that -the plea of the failure to pay the one dollar constitutes no defense. The demurrer to said plea should have been sustained. As to the second plea, we are of the opinion that the contract of guaranty was an absolute and unconditional obligation to pay any indebtedness to the plaintiff that might thereafter be incurred by J. L. Prine, and as 'this contract of guaranty expressly stipulates, “It is understood that there are no conditions or limitations to this undertaking,^except those written or printed herein, at the date hereof,” dispenses with the necessity of giving notice. The guarantors undertook absolutely to pay any amount that the plaintiff might furnish J. L. Prine, and that no acceptance was necessary to be communicated to the guarantors. There was no provision for any such .notice, and in view of the stipulation just mentioned none can be implied or read into the contract; consequently said plea did not constitute a defense. The guarantors had the right to so contract as to bind themselves without such notice, and they have effectually done so.
It is insisted that the demurrer of the plaintiff to the pleas of the defendants ought to be extended back to the declaration on the principle that the demurrer searches the pleadings and will be applied to the first pleading that is demurrable, and that the declaration shows a misjoinder of causes of action and a misjoinder of the parties; and that so extending it will result in affirming the judgment of the court below regardless of the merits of the two pleas above set forth.
A careful reading of the contract of guaranty shows that the obligation of the guarantors and the principal, J. L.
“But for another reason, the objection could not be sustained in this case. 'Where the guaranty or promise, though collateral to the principal contract, is made at the same time with the principal contract, and becomes an essential ground of the credit given to the principal debtor, the whole is one original and entire transaction, and the consideration extends and sustains the promise of the principal debtor, and also of the guarantor. No other consideration need be shown, than that for the original agreement upon which the whole debt rested, and that may be shown by parol proof, as not being within the statute’ [citing authorities]. This principle covers the present ease, because in the .declaration the guaranty is averred to have been made at the time of the delivery of the goods, and the promise to guaranty to have been made before.”
As we see the record the obligation of each of the defendants springs out of the same transaction at the same time, and each of the defendants are individually liable to the creditor for the goods. A'payment by either would satisfy the account, or a partial payment by each would reduce it to the extent of the payment. The contract was not to guaranty the solvency of J. L. Prine, but was an obligation on the part of the guarantors to pay the account; consequently the creditor had the right to resort to all or either of them. Ordinarily the contract of guaranty is separate from that of the principal debtor, and where the contracts are separable and made on different considerations a’joint action could not be maintained; but'where all are primarily responsible and where the liability of each springs out of the same act, the fact that the obligation of the different defendants may be evidenced in a different manner would not prevent suit from being maintained
“The rule formerly was that a contract of guaranty, being separate and distinct from the principal contract, a joint action could not be maintained against the principal and guarantor of an. obligation. But this rule has been greatly modified by the Codes of various states which now often permit one action to be maintained against both principal and guarantor. Some cases also distinguish between a guaranty executed simultaneously with the principal contract and one made thereafter, based upon a separate consideration. The principal debtor is not a necessary party. Persons who have jointly guaranteed the payment of a note which is payable to themselves may be sued either jointly or severally.”
So we think in the present case the plaintiff had a right to sue all the parties in the same account, and the judgment of the court below will be reversed, and the cause remanded:
Reversed and remanded.