150 Minn. 26 | Minn. | 1921
Plaintiff is a wholesale dealer in dry goods. In the summer of 1916, Peter Bible, Jr., was planning to open a store at Foley and ordered goods to the amount of $4,360, to be shipped October 1. On July 26 plaintiff wrote Peter, Jr., stating “we understood that your father was to be a partner with you, but we see that your goods were purchased in your name,” and asking that his father “acknowledge the fact that he •is a partner * * * or else favor us with a guaranty for which purpose we are inclosing one of our guaranty forms.” Peter, Jr. took the guaranty to defendant, his father, told him plaintiff wanted the guaranty before shipping the goods; defendant signed the guaranty by mark and Peter, Jr. mathed it to plaintiff and plaintiff shipped the goods.
The guaranty was'in form as follows: “For value received I. hereby guarantee to save you from loss on account of merchandise sold, or to be sold, by you to Peter Bible, Jr., of Foley, Minnesota.”
This order of goods was later paid for in full. Peter, Jr. bought goods
Since plaintiff moved only for judgment notwithstanding the verdict, the only question on appeal is whether the evidence is conclusive against the verdict. National Cash Register Co. v. Merrigan, 148 Minn. 270, 181 N. W. 585. Errors in rulings on the trial, or in the charge, furnish no ground for judgment notwithstanding the verdict.
A determination of the question whether the evidence is conclusive against the verdict, involves a consideration of the nature of this guaranty and of the rights of the parties under it.
Before resort can be bad to the guarantor on such a guaranty, the creditor must exhaust his remedy against the principal, that is, he must bring suit against him, prosecute it to judgment and return of execution, unless it is made to appear that the principal is hopelessly insolvent. Brackett v. Rich, 23 Minn. 485, 23 Am. Rep. 703; Crane v. Wheeler, 48 Minn. 207, 50 N. W. 1033. There is no evidence that plaintiff proceeded against the principal in this case, nor that the principal was hopelessly insolvent. There is evidence that he was forced into involuntary bankruptcy in 1918, but no showing as to the condition of his estate, nor as to whether he was discharged from his debts, nor as to his present financial condition.
In this ease the demand for the guaranty and the giving of the guaranty were prompted by the large initial sale in the summer of 1916. Nothing was said in the correspondence as to other purchases. The words “sold or to be sold” in the contract do not necessarily imply a continuing transaction. The original sale had not yet been concluded. The account was virtually closed in 1917 and remained closed for more than six .months when it was again opened in February, 1917. Clearly there is evidence to sustain a finding that these 1917 sales were not within the contemplation of the contract of guaranty.
Judgment affirmed.