Penn Tobacco Co. v. Leman & Co. , 109 Ga. 428 ( 1899 )

Cobb, J.

The plaintiff sued the defendants, alleging in its petition that on the 30th day of September, 1897, petitioner received from George D. Mashburn & Company, merchants of Hawkinsville, Georgia, a written order for 20 boxes of tobacco to be sent to them, the price of which was $204.08; that, before the order was accepted and the goods shipped, the defendants guaranteed to petitioner the payment at maturity of the bill for the tobacco so ordered; that “upon this guarantee of said [defendants] said tobacco was by your petitioner forwarded to and received by said Mashburn & Co.; ” that the guaranty was based upon a valuable consideration, that is, the promise of petitioner to allow the defendants two cents per pound on the order in question, as well as on all other orders for tobacco so guaranteed, and that petitioner has actually allowed the defendants a credit on their account of two cents per pound on the bill shipped to Mashburn & Company, which they knew was allowed them in consideration of the guaranty above referred to ¡.that the guaranty referred to was both oral and in writing, the written part being expressed by the letters “ O. Eh,” followed by the signature of the defendants upon the order above referred to; that the agreed meaning of the letters with the signature of the defendants was that they thereby became responsible for the order in case Mashburn & Company failed to pay the same at maturity; that the bill and order referred to is now past due, and both Mashburn & Company and the defendants have failed and refused to pay the same. The defendants demurred to the petition, upon the following grounds: (1) No cause of action is set forth. (2) There is no process against the defendants as a firm, the capacity in which they are sued. (3) Mashburn & Company should have been made parties defendant to the petition. (4) “ The alleged guarantee contract in writing and the account guaranteed should have been attached to the suit now sued upon.” (5) There is no allegation that any invoice was ever sent to defendants, or that the tobacco was shipped through the defendants, or that the tobacco was shipped on the strength of the guarantee. (6) It is not alleged that Mashburn & Company are insolvent, or any cause shown why they have not been sued or the money made out of them. The demurrer was sustained, and the plaintiff excepted.

1. As the record discloses that there was an acknowledgment of service and a waiver of process, signed by the attorney for the defendants, it was not necessary that any process should be issued; and therefore there was no merit in the objection that the process actually issued by the clerk was irregular.

2. The defendants were to be liable to the plaintiff upon the failure of Mashburn & Company to pay the bill at maturity. Upon the happening of this, the only condition provided for in the contract, the plaintiff had a right to bring suit against the defendants for the amount due under the contract, and it was not necessary to make Mashburn & Company parties to the suit. The defendants guaranteed not that Mashburn & Company could pay at maturity, but that they would pay; and hence their solvency or insolvency was immaterial. The rule requiring that the principal debtor should be sued to insolvency or shown to be insolvent, before the guarantor can be held liable, does not apply to an undertaking of tire character involved in the present case.

3. 4. As the petition set forth in effect the contract relied upon and also the account guaranteed, it was not necessary to attach as an exhibit to the petition a bill of particulars of the account nor a copy of the order with the letters “O. K.” and signature thereon, which were alleged to constitute the contract. As it was alleged that the defendants had signed the order for the goods which were shipped to Mashburn & Company and entered upon such order the letters which it was agreed between the parties meant that payment of the account at maturity would be made by the defendants in case Mashburn & Company failed to pay the same, it was unnecessary to allege in the petition that an invoice of the goods was sent to the defendants. It was expressly alleged that the tobacco embraced in the order was shipped to Mashburn & Company and shipped on the faith of the contract entered into by the defendants. There was no merit in the fourth and fifth grounds of the demurrer.

5. The contract relied on by the plaintiff, evidenced by the letters “O. K.” and the signature of the defendants, was ambiguous, and therefore parol evidence will be heard to explain the patent ambiguity appearing upon the paper. If the parties agreed among themselves, as alleged, that this signature and these letters should have a definite meaning as between themselves, then the signature and the letters so entered upon the order would constitute a contract between them, and the defendants would be liable to the plaintiff if the contract thus entered into was of the character alleged in the declaration. Civil Code, § 5202; Foley v. Abbott, 66 Ga. 115. The petition set forth in substance a cause of action, and was not subject to special demurrer on any of the grounds set forth in the demurrer filed thereto. It was error, therefore, to dismiss the action.

Judgment reversed.

All the Justices concurring.