180 P. 349 | Cal. Ct. App. | 1919
Plaintiff appeals from a judgment entered in favor of defendant in an action brought to recover upon a written guaranty executed by defendant, as follows:
"July 24, 1914.
"R. N. Nason Co.,
"San Francisco, California.
"Gentlemen:
"I do hereby guarantee the account of L. C. Kennedy up to the sum of seven hundred fifty ($750.00) dollars, for what goods in your line he may purchase from you, and it is understood that if he does not pay his bills under the terms of purchase that I will pay them or see that they are paid.
"Respectfully Yours,
"MRS. MARIA J. KENNEDY."
Appellant contends that this instrument constituted a continuing guaranty, as defined by section
[1] While by this writing defendant guarantees the account of L. C. Kennedy and agrees that if he does not pay his bills she will pay them, nevertheless it is silent as to what particular account or bill it had reference to. There is nothing *161
contained therein disclosing with certainty that the parties intended the guaranty should cover liability incurred in successive transactions covering an indefinite period of time. Hence, by reason of such uncertainty, we must, in determining the intention of the parties thereto, resort to the circumstances under which the instrument was executed. (First Nat. Bank v. Bowers,
[4] In view of the fact that L. C. Kennedy was for the first time applying to the plaintiff for the purchase of goods, which plaintiff refused to furnish except upon a guaranty of payment thereof, and there being no arrangement for a line of credit and no understanding that other purchases were to be made or contemplated, taken in connection with the statements made by plaintiff's agent, it may fairly be said that the parties understood and intended the guaranty to cover such initial order only. Had it been intended to cover future transactions, it should have been so worded as to include the same; but, as stated, it is silent as to the time, accounts, or bills which it was to cover.
The evidence supports the finding of the trial court that it was intended to cover the initial order of goods only, without which plaintiff was unwilling to furnish the same. The foregoing view renders it unnecessary to consider whether or not the evidence supported the finding of the court that there was no consideration for the guaranty.
The judgment is affirmed.
Conrey, P. J., and James, J., concurred. *163
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 28, 1919.
All the Justices concurred.