Killoran v. Standard Supply Co.

MIDDLETON, J.

“It is apparent, we think, that the trial court, in granting the motion aforesaid, had in mind the evidence as adduced in the trial of the case and, to some extent at least, lost sight of the issues as made by the pleadings. This being so, the case of Railroad Co. v. Noble, 85 OS. 175, is in point.

Many other authorities are to the same effect in this state.

As before observed, it is alleged in the second defense that the principal, W. J. Killoran, shortly after said guaranty was executed, closed his business, paid all obligations, including the indebtedness to the plaintiff, and entered the army of the United State, and that the company had due notice of these facts. These statements make an issue for the jury. There is nothing in the written guaranty to indicate what business W. J. Killoran was engaged in when the guaranty was’ made or where he was so engaged. There is nothing in said gauranty to. show the character of the business in which W. J. Killoran was then engaged. It is apparent, therefore, that extrinsic evidence must be resorted to, to show the situation of the parties to this contract of guaranty and what was then manifestly intended by them that it should cover. If it was assumed by all parties as the basis of the guaranty that W. J. Killoran, in whatever business he was then engaged, would require certain goods, wares and merchandise in the operation of said business, and that the same might be purchased from the company, it would seem to be necessary, for the continuance of the guaranty, that Killoran should continue in such business, and the guaranty confined to goods purchased for said business. These circumstances must be shown by extrinsic evidence. The record shows that each. side endeavored to present its case with as little evidence as possible. However, as has been suggested, the trial court, in determining its right to grant the motion for judgment, was confined to the pleadings, and, as the second defense expressly limited the liability of the guarantor to goods and merchandise which the said W. J. Killoran should then purchase, we think that the court was precluded from resorting to the facts as disclosed by the evidence. For this reason the judgment is reversed and the cause is remanded to the Court of Common Pleas with direction to pass upon the motion for a new trial.”

(Mauek & Thomas, JJ., concur.)