| Mass. | Mar 29, 1933
This is an action of contract to recover a balance due on account of one A. Palder upon an alleged guaranty in writing signed by the defendant. The case was tried in the Superior Court before a jury, and resulted in a verdict for the plaintiff in the sum of $1,484.98. The guaranty is as follows: “September 17, 1927. I hereby guarantee payment of the account of A. Palder, covering purchases of oil made from the Vacuum Oil Company up to and not exceeding $1500.00. Capital Tire & Rubber Co. Hyman Smookler. Terms on carload purchase 60-90-120-150 days from Oct. 1st, 1927.” There was evidence that “Terms on carload purchase 60-90-120-150 days” meant that the total purchase was to be divided into four equal parts, the first payment on which would become due in sixty days from October 1, the next in ninety days, the third in one hundred twenty days, and the fourth in one hundred fifty days.
One Hennessey testified that in September, 1927, he was employed by the plaintiff as a salesman and called upon Palder at his filling station a week or ten days before September 19, 1927, for the purpose of selling him oil; that Palder wanted to purchase a car load; that the witness told him the plaintiff would not sell to him a car load on his own responsibility; that Palder suggested that the defendant would guarantee the purchase; that thereafter on September 19, 1927, the witness met the defendant at Palder’s place of business and the defendant signed the guaranty. The guaranty as originally written was for $2,500; the defendant refused to be bound for that amount but agreed to be responsible to the extent of $1,500 and that amount was inserted in the guaranty in place of $2,500.
The account annexed to the plaintiff’s declaration contains items of charges for sales made by the plaintiff to Palder amounting to $2,520.82 and credits of $1,293.59, and shows a balance alleged to be due the plaintiff of $1,-227.23, which, with interest thereon of $145.12, amounted
At the close of the evidence the defendant excepted to the refusal of the judge to give his first, second, fourth, fifth and seventh requests. The defendant’s first request that the jury be directed to return a verdict for the defendant could not properly have been given. The rights of the parties upon conflicting testimony presented questions of fact for the determination of the jury. The second request that the instrument on which the plaintiff relies is not a continuing guaranty was- properly refused. It is plain that by its terms it was to continue from the time it was signed by the defendant until oil had been delivered by the plaintiff to Palder “up to and not exceeding $1500.00.” No error is shown in the denial of this request. The fourth request that the defendant is not liable on the guaranty for oil purchased by Palder from the plaintiff subsequently to September 17, 1927, was rightly refused as there was evidence tending to show that there were such purchases under the guaranty from the plaintiff after that date. The fifth request could not properly have been given as there was evidence which warranted a finding that the guaranty was entered into by the defendant. The seventh request, in substance, that if the jury found that Palder did not purchase any oil from the plaintiff before September 17, 1927, they should return a verdict for the defendant was
The case was submitted to the jury upon adequate and correct instructions. The judge instructed the jury: “If you believe the testimony of the plaintiff’s witnesses that the defendant signed this [the guaranty] well knowing that it was to be used as a guaranty . . . then you would be entitled to find for the plaintiff, deducting such matters of credit as have been applied and omitting all items that do not deal with the purchase of oil.” He further instructed the jury that if when the defendant signed the guaranty it was with the understanding with the agent of the plaintiff that there was to be another guarantor the defendant would not be liable. These instructions fully protected the rights of the defendant.
The circumstances that Palder purchased a larger quantity of oil from the plaintiff under the terms of the guaranty than was covered by it, and made payments thereon to the extent of $1,227.23, thereby reducing his indebtedness, did not relieve the defendant from the payment of any balance due the plaintiff provided it was not in excess of $1,500. It could have been found upon the evidence that the defendant did not object to Palder purchasing oil on his own responsibility in addition to that which was covered by the guaranty. The obligation of the defendant to the plaintiff was the payment up to and not exceeding $1,500. The amount which might be purchased from the plaintiff was not limited, but $1,500 was the extent of the defendant’s liability. The contention of the' defendant that there was no evidence that he knew his guaranty had been received by the plaintiff or had been accepted by it cannot be sustained. There was ample evidence to show that the plaintiff knew of the guaranty and was willing to make sales to Palder in accordance with its terms. The defendant as guarantor was not entitled to notice of its acceptance or of sales from time to time made to Palder. Paige v. Parker, 8 Gray, 211. Stauffer v. Koch, 225 Mass. 525" court="Mass." date_filed="1917-01-06" href="https://app.midpage.ai/document/stauffer-v-koch-6433820?utm_source=webapp" opinion_id="6433820">225 Mass. 525, 530. The present case is distinguishable from Black,
The judge instructed the jury that if the plaintiff was entitled to recover, the recovery was to be limited to purchases of oil and nothing else; that sales of cabinets, grease and all sales other than oil were to be eliminated; that the purchase related to a car load of oil, not necessarily in a car, but the equivalent of a car load. After a verdict had been returned for the plaintiff the defendant filed a motion for a new trial, which was denied except as to damages, and the defendant excepted. The judge found that a mistake was made in the computation of damages and that the verdict returned was in excess of any amount claimed in the declaration or warranted by the evidence. Thereafter there was a trial before the judge, without a jury, which was limited to the question of damages. He found for the plaintiff in the sum of $1,188.33 with interest in the sum of $231.72, making a total of $1,420.05. At this second trial the defendant requested the judge to rule that there was a material variance between the declaration and the evidence of damage, and that there was no evidence of damage as declared on in the declaration. These requests were rightly denied. At the new trial the judge merely corrected the error of the jury by reducing its finding. In this we find no error. No abuse of judicial discretion is shown in confining the new trial to the question of damages.
It results that as no error of law is shown, the exceptions taken at each trial are overruled.
So ordered.