Williams v. Reynolds

| La. | Jun 15, 1837

Bullard, J.,

delivered the opinion of the court.

This is an action to recover the sum of five thousand dollars on account of liabilities incurred by the plaintiff for the firm of Reynolds & Ayars, under a guaranty of the defendant. The case was tried by a jury, whose verdict was in favor of the plaintiff, and the defendant appealed.

The question whether the guaranty had been revoked, was one of fact, which, under the pleadings was submitted to the jury, and we think there is nothing in the record to authorize us to disturb their finding.

Our attention has been called to a bill of exceptions taken by the appellant to the charge of the judge. He told the jury, that, supposing they belieyed Williams knew of the revocation, yet, if he could not have stopped without serious injury to himself arising out of his acting under the guaranty, or causing the failure of the person guaranteed, he was authorized to continue renewing the obligations which existed at the time of the revocation. In our opinion the court did not err in its view of the rights and obligations of the parties. The guaranty was to continue from October 1, 1832, until January 1, 1834, and admitting the right of the defendant to revoke the guaranty at his pleasure, it could not be done in such a manner as to render the condition of the plaintiff more onerous, and without indemnifying him for liabilities already incurred.

In case of a continuing guaranty until a certain time, the guarantor cannot revoke it in the meantime, at his pleasure, in such a manner as to render the condition of theper-son guaranteed more onerous, without indemnifying him for liabilities already incurred. He will be allowed to renew notes and obligations to which he was a party under the guaranty at the revocation. The 'person guaranteed is not bound to receive any thing but money in discharge of his claims under the guaranty. He is under no obligation to the guarantor to accept a transfer of a stock of goods from the debtor, or a daiion en paiement. Notice to the guarantor by the guarantee, that the debtor has failed, and that he is on his paper to the amount of the guaranty, is sufficient to bind the former.

The appellant contends that the plaintiff cannot recover, because one of the firm of Reynolds & Ayars offered to pay Williams by transferring to him as much of their stock as would secure him the amount for which he was liable, which offer he refused to accept. We are of opinion that he was not bound to receive any thing but money in discharge of his claim, and that he was under no obligations towards the present plaintiff to accept a elation en paiement. Such a transaction with an insolvent debtor would be an attempt to obtain a preference over other creditors, which our law reprobates, and there is nothing in the record to show that the law of Kentucky is different.

It is further urged, that the plaintiff gave the defendant no notice of the amount for which he held him liable under the letter of guaranty. The record contains a letter frpm the defendant to the plaintiff, dated August 7,1833, in which he acknowledges the receipt of one from the latter, informing him of the failure of Reynolds & Ayars, and that he was on their paper for a considerable amount under the guaranty. He assures the plaintiff that he will strictly comply with his guaranty, and adds, that he will be in Louisville in a few weeks, when all shall be made straight.

We think this notice all which the defendant had a right to require. He knew the limits as to the amount of his own guaranty, and is silent as to any revocation.

Upon the whole, we think the verdict fully justified by the evidence in the case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.