Huckaby v. McConnon Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The action is upon a contract of guaranty to secure a line of credit for one Arnold R. Jordan in the future purchase of merchandise from plaintiff. The contract in full appears in the report of the case.

Like other contracts, a guaranty is complete when the minds of the parties meet in mutual assent to the same things in the same sense.

A guaranty in the nature of a letter of credit generally, or to a specified party, to secure future credit for the person in whose favor it is drawn, is usually regarded as a mere conditional offer, not to become binding until the form and sufficiency of the guaranty is approved, and a contractual relation entered into between the guarantee and the insured. The nature of the transaction is such that a due regard for the rights of the guarantor in knowing to whom or when he is to become bound requires notice of the acceptance of the guaranty before mutual assent is complete. Birmingham News Co. v. Read,200 Ala. 655, 77 So. 29; Saint v. Wheeler Wilson Co., 95 Ala. 362, 10 So. 539, 36 Am. St. Rep. 210; Fay v. Hall, 25 Ala. 704; Davis v. Wells, 104 U.S. 159,26 L. Ed. 686; Davis Sewing Machine Co. v. Richards, 115 U.S. 524,6 S. Ct. 173, 29 L. Ed. 480; Adams v. Jones, 12 Pet. 207,9 L. Ed. 1058; 28 C. J. p. 900, § 21.

Notice of acceptance is unnecessary where mutual assent appears upon the delivery of the instrument as other contracts. This may appear from the facts leading to or connected with the signing and delivery of the instrument. Thus, if the guaranty is given pursuant to a prior or present agreement between the guarantor and guarantee, or in response to a request by the guarantee directed to the guarantor, the contract is complete without further notice of acceptance. In such case the offer proceeds from the guarantee, and the execution thereof is an acceptance by the guarantor.

Acceptance and mutual assent may also appear from the instrument itself. A bilateral contract, which by its terms imports privity of contract directly between the guarantor and the guarantee, is perfected upon delivery and acceptance by the guarantee without notice to the guarantor. A recited consideration passing to the guarantor, the receipt whereof is acknowledged, is a completed, binding contract, in the absence of conditions showing a different intent. This rule obtains although such recited consideration be merely nominal, and whether in fact paid. The contract is supported by the consideration passing to the principal. The recital of an actual consideration paid to the guarantor by the guarantee goes to the nature of the contract as a bilateral agreement, absolute and unconditional, binding upon the parties, and not a conditional offer or proposal.

Such is the contract here involved. A failure to give notice of its acceptance is no defense to an action thereon. Shows v. Steiner, 175 Ala. 363, 57 So. 700; Phillips-Boyd Pub. Co. v. McKinnon, 197 Ala. 443, 73 So. 43; McConnon Co. v. Prine,128 Miss. 192, 90 So. 730; 28 C. J. p. 903, and authorities above cited.

The guaranty of "payment," at all times, "absolutely and unconditionally," of any indebtedness thereafter incurred in the purchase of merchandise by the insured, "regardless of his ability or willingness to pay," with waiver of notice of any default on his part, is an absolute guaranty in the nature of suretyship, upon which suit may be brought without first proceeding against the principal or showing diligence to make collection from him. Such obligation casts upon the guarantors the duty to see that the principal pays, or to pay the debt if he does not. It is not a guaranty of solvency or ability to pay, or of the ultimate payment of the debt; but an unconditional promise to pay upon default of the insured. Saint v. Wheeler Wilson Co., 95 Ala. 362, 10 So. 539, 36 Am. St. Rep. 210; Leftkovitz v. Bank, 152 Ala. 521, 44 So. 613; Crawford v. Chatt. Sav. Bank, 203 Ala. 133, 82 So. 163; 28 C. J. p. 972, § 124.

The guaranty is for the payment of any indebtedness incurred by Arnold R. Jordan in the purchase of merchandise, etc. The existence of an indebtedness from Jordan to plaintiff at the time of bringing suit was a part of plaintiff's case. If goods were sold under a contract with Jordan whereby he had the privilege of returning goods for credit, and he "did either pay for or return all goods received by him under said contract in compliance with all the terms thereof," no indebtedness remained as a cause of action upon the guaranty. This defense was presented by the plea of the general issue; no special plea of payment, or return of goods as a method of payment, was necessary. For this reason, demurrer to special plea No. 11 was sustained without injury.

The closing paragraph of the bill of exceptions, on cross-examination of the defendant J. K. Huckaby, reads thus:

"The total amount of the bills claimed by the plaintiff against the defendant for goods shipped to the said A. R. Jordan was $988.34 and that all of these goods had been returned or paid for except $363.61 worth."

The complaint was limited to, and verdict rendered for, only the balance stated. Thus, it appears, defendant had the full benefit of credit for goods returned.

Nothing in the contract of guaranty bound plaintiff to require Jordan to sell only for cash, and a sale of goods by Jordan on credit was no defense to the action.

After the issues have been made up and the trial entered upon, it is usually a matter of discretion to allow or disallow the filing of a plea of non est factum. Murphy v. Coffin Co.,150 Ala. 143, 43 So, 212; Cahaba Mining Co. v. Pratt, 146 Ala. 245,40 So. 943.

The execution of the instrument sued upon may be proven by the testimony of the maker without calling the attesting witness or accounting for his absence. Code, § 7702, subd. 5. A witness, who testifies he has seen a person write, is acquainted with his handwriting, and believes he knows his handwriting, may give his judgment or opinion that a signature is that of such person, although the witness disclaims absolute knowledge of his signature. The testimony of the witness Tipton to Jordan's signatures to orders for goods, and to freight receipts, was competent, and authorized their introduction in evidence.

Upon evidence that the orders were received by plaintiff in due course, that the goods were packed and shipped, that bill of lading and invoice were sent to Jordan in due course, duplicate invoices, carbon copies, made at the same time, and duplicate bills of lading from the carrier, were admissible in evidence without further proof of the handwriting of the agent or his authority. Evidence that they were bills of lading issued for goods actually shipped is also evidence they were issued by the proper agent of the carrier.

The evidence was sufficient to show orders for the goods by Jordan, and their delivery to him, and that the balance claimed was still due thereon.

There was no error in instructing the jury that the testimony of a witness by deposition should be taken as if the witness testified from the stand, with explanation that it be taken with the same sanctity of an oath. This cannot be considered an instruction as to the effect of the evidence, but that it is legal evidence to be given the same consideration as other testimony.

While the jury have not the benefit of the appearance, bearing, and manner of the witness, they should not be invited to indulge presumptions against such testimony because of this, nor because the witness is a non-resident and cannot be prosecuted in Alabama for perjury in another state. On a request of counsel to charge that such witness cannot be prosecuted for perjury, we see no reversible error in the court's suggestion, "That has nothing to do with the case."

We find no reversible error in the several rulings presented.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.