57 Neb. 665 | Neb. | 1899
This action was brought on a written guaranty, and, a general demurrer of each of the defendants to the petition having been sustained, this error proceeding brings up for review the correctness of the ruling whereby the petition was held not to state a cause of action.
It is first urged by the defendants in error that the guaranty sued upon was signed by a partnership firm, and that as a firm it was incapable of becoming surety. The demurrers impliedly admitted the truthfulness of each averment of the petition, and therein it was alleged that the firm, as such, executed and delivered the guar
It is next insisted that the petition failed to state that there was notice of the acceptance of the guaranty by the company in whose favor it was made. This proposition has been settled adversely to the contention of the defendants in error. (Wilcox v. Draper, 12 Neb. 138; Klosterman v. Olcott, 25 Neb. 382.)
The guaranty sued on was in the following language:
“Hartington, Nisb., Dec. 1, 1S93.
Standard Oil Go., Omaha, Neh. — Gentlemen : Mr. A. E. Lively has been established in this city as an oil peddler for-past, and during the whole of that period he has conducted himself in such a manner as to secure the respect and confidence of his fellow-citizens and to establish his reputation as an energetic and prudent man in business operations. His capital at the commencement of this venture was about $1,2Q0; He is now generally estimated by our citizens to be worth about $1,200. As, however, you are not acquainted with him, we willingly do, and do hereby, guaranty the payment of any purchases of oil he may make of your company within the next year, to an amount not exceeding $300.
“Yours respectfully, Hoese & Morten.”
It was alleged that, ending with April 5,1894, plaintiff sold oil to Lively to the amount in value of $853.51. There were credits in the petition of the aggregate •amount of $557.34, leaving the balance sued for of $296.17. It seems to have been held by the district court that the guaranty was exhausted when, as shown by the
It is provided by section 341, Code of Civil Procedure: “When the term's of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” If the language of the guaranty, with reasonable clearness, expresses a certain intention of the guarantor, we are of the opinion that such intention should prevail irrespective of the rule attempted to be invoked that the liability of a surety is one strictissmd juris, for it is not assuming too much to presume that the guarantor had reason to suppose that the Standard Oil Company would understand its letter in its ordinary sense. The guaranty, in effect, was the same as if it had read, we do hereby guaranty the payment of an amount not exceeding $300 of any purchases of oil he may make of your company within a year. The restriction in amount was with reference to payment. The restriction of time was applicable to purchases. In Tootle v. Elgutter, 14 Neb. 158, the language was: “Please let Mr. John Newman have credit for goods to the amount of $100, and for the payment of which I hold myself l’esponsible.” In that case it was insisted that the guaranty should be construed as though it was with reference to a credit for goods of the value of $100, and no more, but it was held that the limitation was with reference to the amount of the liability to which the guarantor was willing to subject himself, and did not necessarily limit the sales to that amount. A case specially relied on by the defendant in error is Historical Publishing Co. v. La Vaque, 66 N. W. Rep. [Minn.] 1150, in which the guaranty was in this language: “Dec. 9, 1892.--Historical Publishing Co., Philadelphia — Gentlemen; I request
Reversed and remanded.