Taylor v. Shouse

73 Mo. 361 | Mo. | 1881

Hough, J.

This was a suit against the administrators of L. L. Shouse, on the following instrument of writing:

“ In consideration that J. P. Taylor, of Marshall, Missouri, and Olathe, Kansas, will give to Charles Whitney ? of the county of Jackson, and State of Missouri, thirty days’ time in which to pay for 500,000 hedge plants, we hereby guaranty to said J. P. Taylor the payment of any and all bills for hedge plants he may furnish on the order of said Charles Whitney, during the spring of 1873, and all necessary costs and expenses, if any, which he may incur in the/collection of the same, or for boxes furnished to ship thí/same, etc.; also all notes given said J. P. Taylor by said Charles Whitney, on account of hedge plants furnished, to these tenor and effect, in all not to exceed the sum of $550. March 31st, 1873.

^(Signed) ■ Wm. M. Clark,

D. L. Shouse.”

The testimony tends to show that Shouse signed this nstrument at Kansas City, on the 29th day of March, 1873; that Whitney sent the same, by mail, on the 31st day of March, to Taylor at Olathe, Kansas, twenty-five miles from Kansas City. Shouse was taken sick on the 30th day of March, was totally incapacitated for business on the 31st, and died on April. 1st, 1873, at 1:30 a. m. There is no evidence that Shouse ever had any notice of acceptance of the terms of this instrument. No instructions were asked by either party at the trial, and none were given. The court found for the defendants.

1 guaranty • proposaito guaranty.

The instrument sued on is not a guaranty of performance of a contract already entered into, as was the case in Davis Sewing Machine Co. v. Jones, 61 Mo. 409; but it is, but it is terms, a proposal to guaranty payment by Whitney to a designated amount, for such hedge plants as Taylor “may furnish” him, upon the condition that Taylor “ will give” Whitney credit for a certain time. In such cases notice of acceptance is necessary in order to bind the guarantor. Central Savings Bank v. Shine, 48 Mo. 456; Rankin v. Childs, 9 Mo. 665; Smith v. Anthony, 5 Mo. 504; Brandt on Suretyship and Guaranty, §§ 158, 159.

2.-: evidence,

The letter written by Whitney to Taylor on the 24th day of March, 1873, requesting the shipment of 500,000 plants, and stating that he supposed a letter from Mr. Shouse, saying he will guaranty the payment of the amount in thirty days, would be sufficient, was properly excluded from the jury. No testimony wak offered tending to show that Shouse knew Whitney had\written such a letter, or that he had knowledge of any exiting agreement between Taylor and Whitney, to which tfce instrument sued on was intended, or could be made w apply. Besides, the undertaking of a guarantor cannot be expended by implication where his intention is clearly expressed in the written guaranty. Shine v. Central Savings Bank 70 Mo. 524. The judgment of the- circuit court will be Affirmed.

The other judges concur.