Farwell & Co. v. Sully , 38 Iowa 387 ( 1874 )

Day, J.

i contractfvSveroEacceptance, — I. The court below rightly held that whatever force there might be in the ground of defense that plaintiffs did not no^fy defendant, at or before the time of selling the goods, that they accepted said guaranty, ft fs entirely obviated by his reply to their letter of June 21st, 1871. In this letter he recognizes the guarantee as an existing obligation, and promises to make it good.

3.-: waiver of notice. .II. We deem it unnecessary to consider, whether under the terms of guaranty, defendant was entitled to notice on the 1st day of January, 1872, of the amount at that time ^ , . clue from Playter, and to a demand of the payment of the same, in order to fix his liability thereon.

We agree with the court below that whatever necessity for such notice and demand existed at the time the guaranty was made, it was waived by the subsequent conduct of defendant.

On the 21st of June, 1871, plaintiffs wrote defendant as follows: “We hold your guarantee for the enclosed account against H. J. Playter. * * * We are told lie is bankrupt, and send you this statement, thinking you might take some action to secure yourself.”

Defendant replied: * * * * “ Prove up your claim in bankruptcy and draw dividends. I will make my guarantee good.” The evidence shows that the claim was proved up in bankruptcy, and the papers were sent to defendant. Defendant claims the true construction of the response to the letter of June 21st, 1871, to be: “ Prove up your claim in bankruptcy and draw dividends. I will pay what Playter may owe on the 1st day of January, 1872, if you on that day notify me of the amount due.” This is not, it seems to us, the reasonable and natural construction of the language employed. It is not the construction which would be likely to be placed upon it by the persons to whom it was addressed, in view of all the circumstances surrounding the transaction. And the act must be construed in the light which all the surrounding circumstances reflect; not for the purpose of wresting the words employed from their reasonable and natural import, but for the purpose of determining, in view of all the circumstances, what that natural and reasonable import is. The defendant, then is advised, on the 21st of June, 1871, that goods, upon which there was a balance due of $703.40, had been sold to ■Playter, and that plaintiffs held defendant’s guarantee for the amount, and that the account was sent in order that he might take action to secure himself, Playter being a bankrupt. Thus advised of the extent of eredit, and of a condition of things which would make any further payments before the first of January improbable if not impossible, he says: “Prove up your claim in bankruptcy and draw dividends. I will make my guarantee good.”

The reasonable construction of this language is, that it recognizes an existing, fixed liability upon his guarantee, because of -what had already transpired, and promises to discharge that liability.

Any other construction would be purely technical, and would furnish proper ground for the application of the quaint maxim, qui hceret in litera, hceret in eortiee.

Affirmed.