White v. Reed

15 Conn. 457 | Conn. | 1843

Hinman, J.

Several questions are made by the defendant, in this case, which it is proper to dispose of, before coming to the one upon which the case must turn ; notwithstanding the zeal with which the others have been urged.

1. Upon the motion in arrest for the insufficiency of the declaration, we entertain no doubt that the declaration is good, and would be sustained upon demurrer ; for though, as a general rule, a guarantor, especially a party giving a letter of guaranty, is entitled to notice of its acceptance, yet, this is far from being a universal rule, applicable to all cases; there are many exceptions to it.

An acknowledgment of the guarantor of his liability, and a promise on his part to pay the debt, would doubtless be sufficient evidence of notice, if it did not supersede the necessity of giving it. And, in the case of a guaranty of a preexisting debt, where the guaranty appears upon the evidence of the debt itself, no judge or lawyer ever supposed it necessary, for the holder of the security, to notify the guarantor, that he accepted the guaranty. So, where the guaranty and the acceptance of it are simultaneous, and parts of the same transaction, no subsequent notice of acceptance is necessary, but the acceptance is implied from the transaction itself. New-Haven County Bank v. Mitchell, 15 Conn. R. 206. For any thing which can be known from this declaration merely, this may be one of that class of cases.

But admitting this to be a case, where notice of acceptance is necessary to be proved, we think it unnecessary to make any more formal allegation of it, than is made in this declaration. This is entirely unlike that class of cases, where, by -the terms or nature of the contract, one is bound to pay money, or perform some act, upon request, or upon notice, and such previous request or notice forms a condition precedent, and is, therefore, a traversable fact; which must be specially alleged, and may, for the same reason, be specially traversed. In this class of cases, there was, originally, a valid contract, but a contract upon condition ; and therefore it is, that the party who seeks performance of it, must show, in his pleadings, that the condition has been complied with, in order to show, that the liability has attached. But, in the case of mercantile guaranties, the object of requiring notice of acceptance, is not for the purpose of performing a condition, upon which a previous contract is to become obligatory ; but for the purpose of perfecting the contract itself. It shows that the minds of the parties have met, and that the contract is complete. It is, therefore, unnecessary to allege any other notice of the acceptance of such a guaranty, than what is always necessary in declaring upon any contract. The parties, in this case, could not contract, until the guaranty was accepted, and notice of acceptance was brought home to the defendant. And it then stood upon the footing of any other contract; and when it is alleged, that the defendant promised, it is, of course, necessarily implied, that he made a valid promise ; — in other words, a promise which the plaintiff had accepted, and the defendant had knowledge of such acceptance. If any authority is necessary, in support of this doctrine, it is to be found, by reference to the established precedents, which are in conformity to the declaration in this case.

2. The plaintiff, in order to show that he gave the defendant notice of the acceptance of the guaranty, and of the sales made to George Reed under it, offered in evidence two conversations of the defendant; one of them, some two or three years after the guaranty was given, when the account of the plaintiff against George was spoken of; the guaranty described ; and the defendant said, “ he would see George about it- — hoped he would pay itsaid “ it was an honest and just debtand appeared to know of the existence of the guaranty. The other conversation was just previous to the commencement of the suit.; and the guaranty and the account were then shown to the defendant, and payment of the account demanded ; and the defendant, after looking at the guaranty, asked why it had not been presented to his commissioners, and among other things, said, he knew it ought to be paid ; took a copy, and said he would take counsel; and if it was not outlawed, and was not barred, by reason of its not having been presented to the commissioners on his estate, and was a continuing guaranty, he would pay it.

Now, as to the sufficiency of this evidence, to prove the facts for which it was offered, the defendant had the benefit of his objection before the jury. We have nothing to do with that. The only question here, is, as to its admissibility. Did it tend to prove the facts for which it was offered 1 But can there be a doubt upon this question ? The defendant knew of the existence of the guaranty ; asked why the claim had not been presented to the commissioners on his estate ; made no objection that notice had not been given him, but said, if the claim was not outlawed, and it was a continuing guaranty, he would pay it. Unless we are to go the length of disregarding all evidence, arising from the declarations of parties, short of a direct acknowledgment of all the facts claimed on the other side, this must be considered as tending to show notice of the acceptance of the guaranty, as well as notice of the sales made to George Reed under it.

3. There was conflicting evidence upon the question, whether the plaintiff had not abandoned the guaranty, and sold and delivered a portion of the goods, upon the credit of George Reed alone. The charge of the judge upon this point, is not objected to, but the defendant claimed, that his witness, George Reed, swore the whole length of his claim, upon this question; and he asked the court to charge the jury, that if they found his testimony to be true, the plaintiff could not recover. This the court, very properly, we think, refused to do.

It is not difficult to conceive of many cases, in which it would be convenient for a party to change the issue from the truth of the facts in controversy, to the honesty or dishonesty of a particular witness. And considering the reluctance with which triers come tó a verdict of guilty, where a criminal charge is the direct issue to be tried, we arc not disposed to countenance an attempt to divert the minds of the jury from the facts in issue, to the honesty of the parties, or their witnesses, however closely connected the two questions may be.

4. But the great question in the case, arises upon the guaranty itself. And, though we are not entirely free from difficulty upon this question, yet, we are inclined to think, this must be construed not to be a continuing guaranty.

There are, certainly, cases bearing a strong analogy to this, in which the guaranties have been held to be continuing. And again, there are as strong cases as this, where they have been held not to be continuing. And, in the decision of cases of this sort, there has not, at all times, been perfect unanimity in the courts. The difficulty seems to have arisen more from the adoption of different and conflicting rules of construction, than from any inherent difficulty there is in construing the contracts themselves, when the principles which are to guide in their construction, are once settled. Hence, in Merle v. Wells, 2 Campb. 413. and in Mason v. Pritchard, 12 East, 221. the courts seem to have applied the principle of construing the contracts most strongly against the persons making them ; and, therefore, held, in those cases, that the guaranties should be considered continuing, unless they unequivocally appeared to be of a contrary character.

The case of Bastow v. Bennett, 3 Campb. 220., which has been pressed upon us, as decisive of this case, like most of the cases cited by the counsel for the plaintiff, was decided upon .the authority of Mason v. Pritchard and Merle v. Wells ; and, of course, must have been governed by the same principle. But, in Melville v. Hayden, 3 B. & Ald. 593. (5 E. C. L. 389.) the court adopted a different principle. In this case, the court construed the contract most favourably for the maker of it. Best, J., says, “ it ought to appear unequivocally, that it was the intention of the defendant to guaranty Moulden’s payments for goods, to be furnished from time to tíme and hence, in this case, the guaranty was held not to be continuing.

In Cremer v. Higginson, 1 Mason 323. Judge Story says, that in every doubtful case, the presumption f ought to be, against holding a guaranty to be continuing.

An extended review of all the cases upon this subject, is not, at this time, intended; nor is it necessary, as a reference to our own reports will show the work to have been already done. See Hall v. Rand, 8 Conn. R. 560. Rapelye v. Bailey, 5 Conn. R. 149. Lewis v. Dwight, 10 Conn. R. 95.

Enough has been said, to justify the remark of Ch. J. Tindal, in Hargreave v. Smee, 6 Bing, 244. (19 E. C. L. 89.) that they run so nearly into each other, that it is difficult to reconcile them ; and though the result to which we have come, may not necessarily impugn the authority of any of the cases; yet, as their usefulness principally depends upon the principles laid down in them; and, as in some of them, the courts have gone very far in construing guaranties to be continuing, in the absence of language which clearly imports that to have been the intention of the parties; we have thought it safe to recur to such principles of construction, as have been adopted by our own courts; and in conformity with them, give a construction to the language of this contract, without resorting to the rules of either a strict or a liberal construction of it.

The rule of construing the words most strongly against the promissor, is a rule of rigour, intended to defeat studied ambiguity, the last to be resorted to, and never to be applied, except where other rules of construction fail. 1 Chitt. Cont. 97. Again, while on the one hand, this is the contract of a surety, and might, therefore, entitle him to a favourable construction ; yet, on the other hand, mercantile guaranties are seldom drawn up, with the caution and precision attending the execution of other contracts; but in language often un-skilfully arranged, and generally, so brief, as necessarily to leave their meaning to be ascertained by inference. To apply to them, therefore, the strict rules of construction applicable to more solemn instruments, seems to be impracticable.

The true principle of sound ethics, says Chancellor Kent, is, to give the contract the sense in which the persons making the promise, believed the other party to have accepted it. 2 Kent’s Com. 557.

In Lewis v. Dwight, 10 Conn. R. 100. the Ch. J. says, “ no strained construction is to be adopted, to subject sureties; but the contract of a surety must, like all contracts, be construed according to the intent; and the question is, what is the fair import of the language of the guaranty.” The supreme court of the United Btates, also, lay down a similar principle, in Dick v. Lee, 10 Pet. 493., in which it is said, the constr,u:ti°n ⅛ to be “ according to what is fairly to be presumed to have been the understanding of the parties, without any strict technical nicety.”

Now, the words used in this contract, clearly, do not, of necessity, import that it was to remain a standing and continuing guaranty, for all sums which George Reed might, from time to time, become indebted to the plaintiff. The words are, “ any sum,” — not sums which seems to impida single transaction. The words are evidently satisfied, when any one indebtedness is incurred ; nor is there any thing, in the nature of the contract, nor in the language used, from which we are able to infer, tjjat any continued dealings were contemplated. Had there been any thing, in the words used, showing that the object of the guarantor, was, to aid his son George, in any business which he was about to establish, or was carrying on, and to give him a standing or continuing credit in that business, the case might have been analogous to the case of Rapelye v. Bailey, 5 Conn. R. 1429. Indeed, most of the cases cited by the plaintiff’s counsel, were of that character ; and, in this respect, therefore, entirely differ from the case under consideration. Mason v. Pritchard, 12 East, 227. Merle v. Wells, 2 Campb. 413. Hargreave v. Smee, 6 Bing. 244. (19 E. C. L. 69.)

Upon the whole, we think no case can be found, upon the authority of which we are compelled to construe this a continuing guaranty. And if such was the intention of the parties, they have not used language sufficiently clear, to indicate it.

We, therefore, upon this point, come to the conclusion, that a new trial must be granted.

In this opinion the other Judges concurred.

New trial to be granted.