Lane Bros. v. Sheinwald ( 1931 )

Rugg, C.J.

This is an action of contract based on a written guaranty. The facts are these: The plaintiff refused to sell merchandise on credit to the Foss Shoe Inc. unless the latter gave to it a guaranty of a debt then existing or to be incurred thereafter to a specified amount. The plaintiff gave a stock form of guaranty, suitable for signature by anybody, to the Foss Shoe Inc. whose manager took it to the defendant and made to him a full statement of the facts just narrated. The defendant thereupon signed the guaranty and turned it over to the manager, to be in turn delivered by him to the plaintiff. There was no evidence tending to show any notice to the defendant by the plaintiff touching the guaranty, and no finding that such notice was given by the plaintiff or reached the defendant. There is no finding as to the time the guaranty reached the plaintiff.

It was said in Black, Starr & Frost v. Grabow, 216 Mass. 516, 518, with ample review and citation of relevant authorities, that “ Although it may be that there is no universal doctrine in this Commonwealth that ‘ acceptance of an offer must be communicated in order to make a valid simple contract/ Lennox v. Murphy, 171 Mass. 370, 373, yet it is true that where a guaranty is in the nature of an offer arid not pursuant to some previous understanding or arrangement, and no consideration is acknowledged in the instrument and none moves directly to the guarantor, and the circumstances of the parties and the transaction are not such as to indicate that knowledge of acceptance quickly will come to the guarantor, notice of acceptance must be given within a reasonable time in order that the guarantor may be held.” There is nothing inconsistent but, on the contrary, everything in harmony with this statement in cases like Paige v. Parker, 8 Gray, 211, and Stauffer v. Koch, 225 Mass. 525, where the relations of the parties and the transactions as entireties were held to bring notice home to the guarantor that his guaranty had been accepted. That statement completely governs the case at bar and prevents recovery by the plaintiff.

The order of the Appellate Division vacating the finding of the trial judge and ordering judgment for the defendant is

Affirmed.