White Sewing Machine Co. v. Fowler

28 Nev. 94 | Nev. | 1904

By the Court,

Talbot, J.:

In part it is alleged in the complaint " that in order, among other 'things, to secure the credit of the defendant Fowler, and to enable said Fowler to purchase sewing machines from plaintiff upon credit, the defendants A. J. Clark, C. E. Clough, and John Sunderland, and each and every of them, together with the defendant Edwin Fowler, did make, execute, and deliver to plaintiff a bond bearing date the 18th day of June, 1902, in the sum of $2,000, undertaking, among other things, that the defendant Edwin Fowler should well and truly pay any and every indebtedness or liability which might in any manner exist or be incurred on the part of said Edwin Fowler to plaintiff; that immediately upon the delivery to plaintiff of the hereinbefore described bond, and relying upon said bond and the security so furnished by said defendants Clark, Clough, and Sunderland, and by each of them, severally, plaintiff commenced to do business with defendant Fowler, and that business relations between plaintiff and defendant Fowler have been continued ever since upon the faith and credit of said bond, and have never been terminated ; that after the execution and delivery of said bond the defendant Edwin Fowler became and was indebted to plaintiff in the sum of $1,939” upon certain promissory notes, the dates, amounts, and execution of which are detailed.

A copy of the bond is made a part of the complaint, and it is therein recited "that Edwin Fowler and other-signers [they being the other defendants] are hereby held and firmly bound, severally and individually unto the White Sewing Machine Company in the sum of $2,000 for value received, to be paid the White Sewing Machine Company. *. * * The condition of the above obligation is such, that if the above bounden Edwin Fowler, heirs, executors or administrators, shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred on the part of said Edwin Fowler to the White Sewing Machine Company, or its assigns, whether, such indebtedness or liability shall exist in the shape of Book Accounts, Notes or Leases, Renewals or Extension of Notes, Accounts or Leases, Acceptances, Indorsements, Consignments of Property or Merchandise, failure to deliver or account for the same, or any part thereof, or otherwise, and whether such indebtedness shall be incurred under any contract between said White Sewing Machine Company and said Edwin Fowler or otherwise; and whether the same shall arise out of the purchase and sale of Sewing Machines, or otherwise, hereby waiving' presentment for payment, protest and notice of protest, and diligence upon all Notes, Accounts or Leases, now or hereafter executed, indorsed, transferred, guaranteed or assigned by the said Edwin Fowler to the White Sewing Machine Company, its agents or assigns, then this obligation to be void, but otherwise to be and remain in full force and effect.” ‘

From an order overruling a demurrer to this complaint, and a judgment in favor of plaintiff, the defendants appeal, and.urge that the bond is void under the statute of frauds, because it is a contract of suretyship, and fails to express the consideration. To support .this contention, they seem to rely principally upon the authority of Van Doren v. Tjader, 1 Nev. 384, 90 Am. Dec. 498; but that case is distinguishable from this in two particulars, and a perusal of the opinion on the petition for rehearing indicates that after an examination of conflicting opinions the conclusion was not reached without difficulty and doubt. There the court held that a party does not become liable as a surety lay merely writing his name on the back of a promissory note at the time of its execution. Here we may consider whether the words "for value received” are a sufficient expression of the consideration, and whether it may not be fairly implied and reasonably understood from the terms and conditions of the bond that it was executed by the other defendants in consideration of the extension of credit to Fowler on the purchase of sewing machines or otherwise. We think the language employed indicates that such was the intention and purpose of the parties.

Numerous authorities cited in the briefs, and others, hold that the words "for value received” are a sufficient expression of the consideration. (Day v. Elmore, 4 Wis. 190; Cheney v. Cook, 7 Wis. 423; Douglass v. Howland, 24 Wend. 35; Edelen v. Gough, 5 Gill, 103; Flowers v. Steiner, 108 Ala. 440, 19 South. 321; Dahlman v. Hammel, 45 Wis. 466; Emerson v. Aultman, 69 Md. 125, 14 Atl. 671; Whitney v. Stearns, 16 Me. 394; Martin v. Hazzard Powder Co., 2 Colo. 596; Osborne v. Baker, 34 Minn. 307, 25 N. W. 606, 57 Am. Rep. 55; Baylies on Sureties & Guaranties, 87; Siemers v. Siemers, (Minn.) 60 Am. St. Rep. 430, and cases there cited in the note.)

The rules that the surety will be bound if the consideration can be fairly implied from the language of the instrument, and that the extension of credit is a sufficient consideration, are supported by many decisions. (Eastman v. Bennett, 6 Wis. 232; Hutton v. Padgett, 26 Md. 228; Church v. Brown, 21 N. Y. 315; Young v. Brown, 53 Wis. 333, 10 N. W. 394; Rigby v. Norwood, 34 Ala. 129; Highland v. Dresser, 35 Minn. 345, 29 N. W. 55; Simons v. Steele, 36 N. H. 83; Bailey v. Freeman, 11 Johns. 221, 6 Am. Dec. 371; Browne on Stat. Frauds, 484-486; 1 Reed on Stat. Frauds, 430; 2 Daniel on Neg. Instmnts. see. 1767; 3 Parsons on Contracts, 17; annotation, Siemers v. Siemers, (Minn.) 60 Am. St. Rep. 438, 439; Violett v. Patton, 5 Cranch, 150, 3 L. Ed. 61.)

The order and judgment of the district court are affirmed.