Consolidated Portrait & Frame Co. v. Claxton

Suit was brought on the following written obligation: “Town of Kite, State of Georgia. July 25, 1906. “Consolidated Portrait & Frame Company, 289-292 West Madison Street, Chicago, Ill. Gentlemen: Should R. W. Coursey order goods of you at ■one or several times within the next twelve months from date ■of this letter of credit, we jointly and severally request that you ship such goods to his order allowing credit thirty days from date ■of shipment; and if said E. W. Coursey fails to pay for such goods within thirty daj^s after date of shipment, we agree to pay for said goods at the price you. charged him 'for same, provided our responsibility shall not exceed two hundred dollars. We waive all notice to us of shipment made to said B. W. Coursey on the faith of this letter of credit as well as notice that he failed to pay for such goods, and in case the collection due to you by virtue of the credit you extend to the said B. W. Coursey by virtue of this letter of credit is enforced by suit, we agree to pay all court cost, attorney’s fees, and the attorney’s fees may be included with the judgment. For the purpose of enabling said B. W. Coursey to obtain credit from your house, we represent that we are worth not less than two thousand dollars over and above all exemptions, liabilities and obligations of all kinds which we now have. Date, August 2nd. 1905. 1st. M. J. Claxton. 2nd. J. P. Mixon Jr. 3d. R. W. Course), in whose favor this letter of credit is made.”

A. L. Hatcher, for plaintiff. E. L. Stephens, for defendants.

Suit for $160.00, with interest and attorney’s fees, was brought against M. J. Claxton and J. P. Mixon, as makers and guarantors. Petition set forth itemized account of goods sold B. W. Coursey on the faith of this guaranty. 0Copy of the contract was attached, and alleged notice by plaintiffs of acceptance of the guaranty. Demurrer to the petition, on the ground that the contract sued on is one of surety and not guaranty, was sustained and the plaintiff excepted.