277 Mass. 497 | Mass. | 1931
This is a bill in equity to establish a debt alleged to be owed by the principal defendant, hereinafter called the defendant, to the plaintiff by reason of a written guaranty given by him to it, and to have applied to the payment of such debt a certain parcel of real estate alleged to have been fraudulently conveyed through a third person to himself and the other defendant, his wife. The evidence taken at the trial in the Superior Court and the findings of fact made by the trial judge appear in the record of the case before this court. The defendant, who appealed from a final decree in the Superior Court, at the hearing on that appeal stated, in substance, that the only issue to be con
The defendant at the trial admitted that he signed. the instrument, a copy of which, set out in the bill of complaint, reads as follows: “I, Massamino LaConte, sole owner of the property located at numbers 41, 43, and 45 Tappan Street, Everett, County of Middlesex, Massachusetts, do hereby guarantee any and all purchases made by the Commercial Plumbing and Heating Company and hereby authorize the Standard Plumbing Supply Company to regard this document as a guarantee on my part for all materials purchased in the name of the Commercial Plumbing & Heating Company with the understanding that above mentioned property becomes and is security for such purchases, until such time as this guarantee is rescinded and it is further understood and agreed that this document cannot be rescinded until the account between the Commercial Plumbing and Heating Company and the Standard Plumbing Supply Company of Roxbury, Boston, Massachusetts, .is paid in full. Dated this 28th day of November in the year of our Lord Nineteen hundred and twenty-eight. Massamino LaConte.” The trial judge ruled that the signed instrument in the record marked exhibit “A” is “an absolute guaranty of payment by . . . [the principal defendant] to the complainant of all indebtedness of the Commercial Plumbing and Heating Company.”
As respects the consideration, if any, for the guaranty, the defendant makes no issue in his requests for rulings or in his brief. He makes two points in support of his requests for rulings, hereinafter referred to, “First, that the guaranty is a guaranty only up to and including November 28, 1928,” and, second, that “if it is a continuing guaranty it can only continue up to the date of the formation of the corporation which was January 23, 1929.” Whether the instrument signed by the defendant is a limited or continuing guaranty is to be ascertained by giving effect to the intention of the parties as manifested by the terms of the guaranty read in relation to the circumstances under which it was given.
In consideration of the fact that the business of the son was carried on at 41 Tappan Street, that the son who owned the business lived with the father at 41 Tappan
The facts found warranted the ruling that the guaranty was an absolute one and are, therefore, an answer to the contention of the defendant that there can' be no recovery based upon the terms of the signed paper, because, as he alleges, .there is no evidence that the plaintiff notified the signer of the guaranty of its acceptance of the guaranty within a reasonable time. Indeed the facts surrounding the execution of the guaranty warranted a finding that the instrument was executed at the request of the plaintiff, the son of the defendant, and the partner of the son in contemplation of future indebtedness of the son and his partner to the plaintiff. The kind of notice required in the case of an alleged continuing guaranty depends upon the situation of the parties and the inferences fairly to be drawn from the previous dealings, if any, in regard to the matter. Bishop v. Eaton, 161 Mass. 496, 499. Lennox v. Murphy, 171 Mass. 370. Lynn Safe Deposit & Trust Co. v. Andrews, 180 Mass. 527. Stauffer v. Koch, 225 Mass. 525, 530.
It appears in the record and the findings of the trial judge that on January 23, 1929, a corporation was organized by the said George G. LaConte, the said Frederic J. McCarthy and one Ernest J. Macleod under the name of Commercial Plumbing & Heating Company, Inc.; that thereafter no change was made by the plaintiff on its books as to the name Commercial Plumbing and Heating Company; that the
It follows that the requests for rulings la, 7, 8 and 9 were refused rightly as were requests 2, 3, 4, 5 and 6, because inapplicable upon the facts stated.
Decree affirmed with costs.