McConnon v. Richardson

78 So. 292 | Miss. | 1918

Sykes, J.,

delivered the opinion of the court.

The appellant, plaintiff in the court below, ■ brought ■suit in the circuit court of Smith county against Frank P. Richardson, W. M. Richardson, and M. 0. Williams, for the sum of five hundred and eighty-one dollars and twenty-seven cents, and interest.

The declaration alleges that the plaintiff sold certain goods to Frank P. Richardson, as is shown by its itemized account attached to the declaration; that the account is over-due and unpaid; that in accordance with the written agreement attached to the declaration all the defendants are due this sum to plaintiff. The first part of the written agreement is, in brief, an obligation upon the part of the plaintiff in this case to sell the goods to Frank P. Richardson, and an obligation upon the part of Frank P. Richardson to pay for them. After the signatures of the plaintiff and Frank P. Richardson to the above agreement, and constituting a part ■of the same written instrument, is the following:

“In consideration of the sum of one dollar to us severally in hand paid by MeConnon & Co., the receipt whereof is hereby acknowledged, and the execution of -the within agreement by said company and the sale and delivery by it to the party of the second part of its medicines, extracts, and other articles, we, the undersigned, do hereby jointly and severally guarantee the full and complete payment of said medicines, extracts, and other article, at the time and place and in the manner in said agreement provided.

[Signed] W. M. RioiiardsoN.

“M. 0. Williams.

“(Guarantors sign in ink on above lines.)”

To this declaration Frank P. Richardson filed a plea of the general issue. W. M. Richardson and M. 0. Williams filed a demurrer thereto^ assigning therein the following grounds, viz.:

“(1) Because the said declaration sues these defendants as promisors, when the exhibit .thereto shows that théy are only guarantors to said contract.

“(2) Because the s;|M declaration shows, on its face, 'that the principal debtcliyhas not been declared insolvent .and bankrupt, and that if there is any sum of money due by him he has not been proceeded against to judgment, and an execution thereunder had failed to make the • amount of the indebtedness.

“•(3) Because the declaration fáils to show that the ■plaintiff: had been diligent in the collection of its said debt, or that the terms and conditions of its said contract had been complied with.

“(4) Because there is a misjoinder of causes of action.

“(5) Because there is a misjoinder of parties defendant.

“(6) Because the said pleadings show on their face that the plaintiff is not entitled to .maintain its afore.said action against these defendants.”

This demurrer was sustained in the circuit court, and, -on the plaintiff refusing to pleád further, a judgment ■of dismissal was entered, from which judgment this appeal is prosecuted.

The court' erred in sustaining the demurrer and dismissing the cause. While the agreement terms the' two demurrants as guarantors, at the same time there-is hut one written agreement or contract, and that is signed by the principal debtor and the guarantors or sureties. There was -no separate guaranty as to the-payment of the principal debt, but the entire contract is covered by the one agreement. This agreement is. an original promise on the part of the guarantors or sureties to answer for the debt or default of the principal obligor. Their contract and liability are exactly the same as F. P. Richardson’s. No breach of-the contract can occur as to F. P. E-ichardson which is not equally a breach as to them. Their promise is joint and several with Frank P. Richardson’s. In reality, their contract is one of suretyship. Cox v. Weed Sewing Machine Co., 57 Miss. 350; Wren v. Pearce, 4 Smedes & M. 91.

There was no duty resting Spon the plaintiff to allege the insolvency of Frank P. Richardson. The agreement. was not as to the solvency of the principal, but that the debt would be paid. Wren v. Pearce, supra.

Reversed and remanded-