| Kan. | Jul 15, 1881
The opinion of the court was delivered by
This cause was tried in the court below upon the following agreed statement of facts:
“Now come the parties to the above-entitled cause, by their respective attorneys, and submit said cause to the court for its decision and judgment, on the following agreed statement of facts, to wit:
“ 1st. That at the commencement of this action, and at the several times hereinafter mentioned, the plaintiffs were and now are copartners, doing business under the firm-name of the Chicago Lumber Company, and were engaged in the business of selling lumber and building materials, at wholesale and retail, in the city of Wichita, Sedgwick county, Kansas.
“2d. That at the several times hereinafter mentioned, the defendant, T. A. Wilkinson, was engaged in the business of selling lumber and building materials in the city of Winfield, Cowley county, and state of Kansas.
“3d. That the said T. A. Wilkinson, defendant, desiring to obtain of the plaintiffs lumber and building materials on credit, and having requested the plaintiffs to furnish him such lumber and building materials, and the plaintiffs having declined so . to do unless the said Wilkinson should furnish security for the payment of the same, the said Wilkinson
‘“Winfield, Kansas, March 11, 1878.
“‘We hereby authorize the Chicago Lumber Company, of Wichita, Kansas, to furnish to T. A. Wilkinson such building materials as he may wish, not exceeding the value of two thousand dollars at once; and if the said T. A. Wilkinson shall fail to pay for the same, either in money or material received from the Chicago Lumber Company, then upon ninety days’ notice we agree to pay to the Chicago Lumber Company the amount remaining due from T. A. Wilkinson to the Chicago Lumber Company.
“‘T. A. Wilkinson. Jas. E. Platter.
M. G. Troup.
J. W. Curns.’
“4th. That in reliance ou said written instrument, the plaintiffs furnished said Wilkinson from time to time between the 11th day of March, 1878, and the 19th day of December, 1878, both days inclusive, such building materials as he wished; that the account hereto attached and marked Exhibit A’ is a true and correct statement of the account kept by the plaintiffs with the said Wilkinson, and shows correctly the respective values of the several amounts of lumber and building materials, and the respective dates thereof, furnished by the plaintiffs as aforesaid, between the 11th day of March and the 19th day of December, 1878, both' days inclusive, to the said Wilkinson, as well as the payments made by the said Wilkinson to the plaintiffs, on account of such lumber and building materials, between the 11th day of March, 1878, and the 14th day of January, 1879, both days inclusive, and the respective dates of such payments.
“5th. That on the 14th day of January, 1879, the plaintiffs and said Wilkinson had a full and complete settlement of their transactions growing out of the furnishing of the lumber and materials aforesaid, and in such settlement it was mutually ascertained and agreed by and between the plaintiffs and said Wilkinson, that there was due and payable from the said Wilkinson to the plaintiffs, on account of the lumber and building materials so furnished, a balance of $1,999.41, which the said Wilkinson then and ever since has failed to pay to the plaintiffs.
“6th. That for the purposes of this action it is agreed and understood that the settlement had by and between the plaintiffs and the said Wilkinson, and mentioned in the above fifth
“7th. That neither of the defendants, Platter, Troup, or Curns, nor either of them, had any notice or knowledge whatsoever that the plaintiffs had accepted the guaranty contained in said written instrument, or that plaintiffs had furnished said Wilkinson any lumber or building materials thereunder, or that said Wilkinson had made default in the payment of the balance due from him as aforesaid to the plaintiffs, until the 10th day of April, 1879; that on the day last aforesaid the plaintiffs served on the defendants Platter, Troup, and Curns, severally, a written notice, of which the following is a copy, to wit:
‘“Wichita, Kansas, April 10,1879.
Mr. T. A. Wilkinson, in account with Chicago Lumber Company. (Established 1866. Douglas Avenue, near depot.)
To balance........................................................................$1,999.41.
“‘Messrs. M. G. Troup, J. E. Platter, J. W. Owns: Please take notice, that Mr. T. A. Wilkinson has failed to meet the above liability, and that we look to you for payment within ninety days from receipt of this notice.
“/Tours, &e., Chicago Lumber Company.’
“That the defendant Wilkinson, at several times during the furnishing of lumber and building materials aforesaid, was indebted to the plaintiffs in excess of two thousand dollars, on account of such lumber and building materials, as shown by said ‘Exhibit A’; that no part of said sum of money has been paid.
“ That this cause shall be submitted and determined on the foregoing facts, and if it is determined that on such facts the plaintiffs are entitled to recovery in the action, the amount of the recovery shall be nineteen hundred and ninety-nine ^ dollars, and seven per cent, interest thereon from the 10th day of July, 1879.”
Upon the foregoing facts, the court below found the issues in favor of the plaintiffs and against the defendants, and rendered judgment accordingly; and three of the defendants, Platter, Troup, and Curns, now bring the case to this court for review. They claim that the court below erred for various reasons:
1. They claim that.the written instrument sued on was only a proposition or offer to guarantee payment for the value of
2. That even if said written instrument became a binding contract, still, that the guaranty contained therein was not a continuing one, but that it simply authorized the furnishing of building materials at only one time, and that all the building materials furnished at such time had been fully paid for.
3; That even if the written instrument was a binding contract without said notice, and even if the guaranty contained in the written instrument was a continuing one, still, that the plaintiffs never gave to the defendants Platter, Troup, and Curns, any notice of the advances made to Wilkinson of any such building materials, and therefore that they were released from all obligation on their guaranty.
4. That under said written instrument the plaintiffs had no authority to ever permit Wilkinson’s credit to exceed the sum of two thousand dollars, and that, the plaintiffs, by permitting such credit to exceed that sum, released the defendants Platter, Troup, and Curns, who were only sureties.
5. That the plaintiffs never gave the defendants Platter, Troup, and Curns, any reasonable notice of any default in payment made by said Wilkinson, and therefore, for that reason also, they were released from their guaranty.
It will be seen that the decision of this case can amount to but little more than merely a construction or interpretation of the written guaranty of the defendants Platter, Troup, and Curns. What does the guaranty mean ? It may properly be divided into three parts: first, the grant of authority to the Chicago Lumber Company to furnish the materials; second, the limit in the amount of the value of materials to be furnished; third, the terms and conditions of payment. The guaranty will then read thus:
2. “ Not exceeding the value of two thousand dollars at once;
3. “And if the said T. A. Wilkinson shall fail to pay for the same, either in money or materials received from the said Chicago Lumber Company, then upon ninety days’ notice we agree to pay to the Chicago Lumber Company the amount remaining due from T. A. Wilkinson to the Chicago Lumber Company.”
We shall examine the above claims of error in the order above mentioned.
I. We think that the written instrument sued on was, in one sense, only a proposition or offer to guarantee payment for the value of the building materials to be furnished by the plaintiffs below to Wilkinson; but not in the sense as claimed by the defendants below. / The guaranty did not depend for its force and validity upon any notice subsequently to be given by the plaintiffs to the defendants, but depended solely upon the fact of the plaintiffs accepting the security furnished by the written guaranty, and delivering the building materials under it. j It was evidently intended by the parties that the guaranty should be complete and absolute, without any such notice. The guaranty reads: “We hereby [that is, by this instrument, and without requiring a subsequent notice] authorize [that is, now authorize, using the word in the present tense] the Chicago Lumber Company, of Wichita, Kansas, to furnish to T. A. Wilkinson such building materials as he may wish,” without saying a word about any notice to be given before the building materials were to be furnished; and then provides for payment for the building materials, upon ninety days’ notice being given of the amount due for such building materials. It will therefore be seen that the question of notice was considered by the parties, and the only notice mentioned in the contract was the one with regard to payment for the materials furnished. If any other notice had been desired by the defendants, they would undoubtedly have
We think the guaranty was complete and absolute as soon as it was accepted by the plaintiffs, without any notice of such acceptance being given to the defendants. We are aware that there is a great conflict among the authorities with regard to guaranties of a similar character to this. See Farmers &c. Bank, v. Kercheval, 2 Mich. 504" court="Mich." date_filed="1853-01-15" href="https://app.midpage.ai/document/farmers--mechanics-bank-v-kercheval-6631239?utm_source=webapp" opinion_id="6631239">2 Mich. 504; Powers v. Bumcratz, 12 Ohio St. 273; Douglas v. Howland, 24 Wend. 35" court="N.Y. Sup. Ct." date_filed="1840-05-15" href="https://app.midpage.ai/document/douglass-v-howland-5515502?utm_source=webapp" opinion_id="5515502">24 Wend. 35; March v. Putney, 56 N. H. 34; 1 Parsons on Contracts, 479; Wade on Notice, § 388, et seq., also § 404. See also authorities cited in brief of defendants in error.
It is also claimed that the guaranty was not a continuing one, but was so limited that building materials could be furnished only at one time. This, we think, is an erroneous interpretation of the contract. The contract says: “We hereby authorize the Chicago Lumber Company of Wichita, Kansas, to furnish to T. A. Wilkinson such building materials as he may wish.” This is’an authority to furnish building materials without any limit as to time, amount, or value. The defendants, however, after giving this unlimited authority, then limit the same by using the words “not exceeding the value of two thousand dollars at once.”
Wilkinson was a retail dealer in building materials at Win-field, and the Chicago Lumber Company was a wholesale dealer in building materials at Wichita; and Wilkinson, desiring to purchase building materials of the Chicago Lumber Company on credit, to enable him to carry on his business at
We think this limitation, fairly construed, would prevent the Chicago Lumber Company from furnishing to T. A. Wilkinson on the credit of the defendants building materials to an amount exceeding at any one time the value of two thousand dollars; and this whether the building materials were procured at only one time or at several times. But we do not think that this limitation confines the parties to one transaction alone. There is also a great conflict among the authorities upon the question of continuing and limited guaranties, some authorities holding one way, and some another; but we think under the language of the present guaranty, there is not much room for any interpretation other than that above indicated. We would refer to the following authorities, among others: Gates v. McKee, 13 N.Y. 232" court="NY" date_filed="1855-12-05" href="https://app.midpage.ai/document/gates-v--mckee-3607755?utm_source=webapp" opinion_id="3607755">13 N. Y. 232; Ringe v. Judson, 24 N.Y. 64" court="NY" date_filed="1861-12-05" href="https://app.midpage.ai/document/rindge-v--judson-3582172?utm_source=webapp" opinion_id="3582172">24 N. Y. 64; Brandt on Suretyship and Guaranty, §130, et seq.
If the said written instrument was a binding contract without notice of the acceptance of the guaranty, and if the guaranty was a continuing one, then no notice was required to be giyen to the defendants, except the one provided fpr in the written instrument, and except such as was necessary to enable them to avoid any loss that might occur on account of the insolvency of Wilkinson. We think this principle is so well settled that it will need no further consideration ; and as it is not shown that the defendants have suffered any loss on account of failure to give such notice, we do not think that this point is well taken.
III. The plaintiffs gave to the defendants Platter, Troup, and Curns, the notice that was provided for in the written guaranty; and we think that that was sufficient.
Taking the whole case together, we perceive no error, and the judgment of the court below will be affirmed.
See also the case of Wilcox v. Draper, recently decided by the Supreme Court of Nebraska. (25 Alb. Law Jour. 209; 12 Neb. Rep.) In that case the defendant wrote a letter to the plaintiff, introducing the bearer as a purchaser of lumber, who would ask for credit, which letter contained these words: “If you will accommodate him, you will greatly oblige him, and I will see you paid as lie agrees.” Upon the faith of this guaranty, the plaintiff sold such bearer lumber on credit; and it was held by the Supreme Court of Nebraska that the defendant was liable as guarantor for the price of the lumber, even though the plaintiff did not notify him that the guaranty woe accepted.