Scott v. Myatt

1. A written order, addressed to a mercantile firm, in these words : 11 Please let the bearer, Mr. 0., have any little things he may stand in need of, and I shall be good for the same,” held to be a direct, original undertaking, which would continue until revoked, or until the account was closed, and would embrace any articles, of no great value, which would come under the denomination of necessaries for a person in O.’s condition. 2. No notice of acceptance, or demand of payment, before suit brought, is necessary to charge one on whose written order (a direct, original undertaking) goods are furnished to another. 3. Evidence that the goods were charged on the merchant’s books to the person to whom they were furnished, and that he afterwards settled the account, by paying a part in cash, and giving his note for the balance, is proper for the consideration of the jury, in determining whether the credit was given to him; but if the goods were sold on the faith of the written order, the rights and liabilities of the parties must be determined by it, and would not be affected by the fact that the merchant treated it as a collateral, instead of a direct undertaking, or that he charged the goods to the person who obtained them.

Appeal from the Circuit Court of Perry. Tried before the Hon. Thomas A. Walker. » Assumpsit by Myatt & Moore against James Scott, to recover the amount of an account of $120 for goods, wares and merchandise. On the trial, the plaintiffs proved, and read in evidence to the jury, a written order of which the following is a copy : “ Messrs. Myatt & Moore : Please let the bearer, Mr. Orr, have any little things he may stand in need of, and I shall be good for the same. Very respectfully, January 8, 1850. James Scott.” Plaintiffs then offered testimony, tending to show tha¿ they had sold goods, wares and merchandise to said Orr, from the 19th Jannary, 1850, until the 1st of January, 1851, amounting to $105 30 ; that said goods were sold to said Orr on the faith of said written order, and that Orr was a stranger to them ; but there was no proof that plaintiffs had, at any time, given notice to defendant that they were selling, or had sold, any goods to said Orr on the faith of said order; and there was no proof showing any demand of payment for said goods, fiom said defendant, at any time, otherwise than by the bringing of this suit. The defendant then proved, that the goods so sold and delivered to said Orr were all charged to said Orr alone on plaintiffs’ books, and not to defendant; that Orr had settled said account, on the 27th February, 1851, by paying $60 in cash, and giving his note for the balance, dated February 27, 1851, and due one day after date, with interef-t from January 1, 1851. This note was produced by plaintiff, on notice from defendant, and was proved to be unpaid. Defendant also proved, that said Orr, in the fall of the year 1851, went to Texas, and had not since returned. “ There was no proof to show that Orr was in need of the articles bought, except that plaintiffs were merchants, and that Orr delivered the order to them, applied for and bought the goods, and the character and quality of the goods sold to him; the same being articles of men’s clothing, tobacco. &e.” On this evidence the court charged the jury, that the instrument sued on in this case was not a collateral guaranty, but was a direct obligation, from defendant to plaintiffs, to pay for the goods bought by said Orr, and that plaintiff could maintain this suit, without proof of notice of the acceptance of the order by plaintiffs,'’or of the sale of goods to said Orr on the faith thereof, or any demand of payment before suit brought; that the settlement of the account by Orr, by paying $60 in cash, and giving his note, due one day after date, for the balance, did not discharge defendant from liability, if otherwise liable, as to the balance of the account unpaid, under his obligation to plaintiffs, unless said note had been paid. The defendant excepted to each part of this charge, and asked the court to give the following charges : 1. That, if they believed that plaintiffs, after they had received defendant’s said written order, sold the goods embraced in their account to said Orr, charged said Orr alone with them on their books, and then settled said account with him as shown in the evidence, these acts of plaintiffs would show that they had treated said order as a collateral undertaking, and then plaintiffs could not recover, without proof of notice to defendant that his guaranty had been accepted. 2, That, if there vfas no evidence that plaintiffs, after receiving said order, gave notice to defendant that they accepted the same, or that they were selling goods to said Orr on the faith of it, but sold said goods to said Orr, charged them on their books to him, applied to him for settlement of the account, received $60 in cash from him, and took his note for the balance, due one day after date, then plaintiffs could not recover. 3. That the instrument sued on is a collateral, and not a primary obligation, from defendant to plaintiffs. 4. That the burthen of proof is on the plaintiffs, to show that said Orr stood in need of the articles sold to him by plaintiffs. This charge the court gave ; and defendant then asked the court to charge, that if the only proof in the case, on this point, was, “ that plaintiffs were merchants, and that Orr delivered the order to them, applied for and bought the goods, and the character and quality of the goods sold to him, the same being articles of men’s clothing, tobacco, &c.,” this proof would not be sufficient to entitle plaintiffs to a recovery ; which charge the court refused to give. The defendant excepted to these several refusals to charge as requested ; and he now assigns for error the several rulings to which he excepted, as above shown. 1. The ■ instrument sued on is a guaranty. — Goodman v. Parish, 2 McCord 259. The case of Bates v. Starr, 6 Ala. 897, though somewhat similar, is not precisely the present; and that case, it is submitted, is not correct. The case therein cited (Chase v. Day, 17 Johns. 114) is not at all in point. 2. But, if the instrument itself does not show that it was intended as a guaranty, the circumstances place the matter beyond doubt; and the intention of the parties, as shown by the proof, must determine the nature of the transaction. — Story on Contracts, p. 754 § 858 ; 11 U. S. Digest, p. 247 § 15. The facts that the plaintiffs below charged the goods to Orr alone, called upon him for payment, received from him a part payment in cash, and took his note for the balance; the absence of any notice of acceptance of the guaranty, or of the amount of the account contracted ; and that no demand was made before bringing suit: all these facts show conclusively, that plaintiffs below regarded Orr as primarily liable to them, and Scott as collaterally liable. — Parsons on Contracts, p. 499; Burge on Suretyship, pp. 22, 28; Babcock v. Bryant, 12 Pick. 133 ; Matthews v. Milton, 4 Yerger 576; Watson v. Wharam, 2 Term R. 80. ■ 3. Scott’s undertaking being thus shown to be collateral, he was entitled to notice of acceptance of his guaranty; and as it was shown that no notice was given him, he is not bound. Story’s Con. § 873 ; Parsons’ Con. 501; Chitty’s Con. 207, note 1; Louisville Man. Co. v. Welch, 10How. U. S. R. 461; 22 Pick. 223, 228 ; Lawson v. Townes, 2 Ala. 373. 4. The debt not having been paid at maturity, Scott was entitled to notice thereof, and the bringing of the suit is not sufficient notice. — Courtis v. Dennis, 7 Metcalf 518. Scott having received no notice, until after Orr had gone to Texas, he could not indemnify himself; he was discharged, therefore, because injury was done him. — Story’s Con. § 874. 5. Orr gave his note, due one day after date, for the debt, and this novation or change of the debt discharged Scott.— Chitty on Contracts, pp. 528, 529; Story’s Con. § 870. 6. This was not a continuing guaranty. It does not appear that Scott so intended it. The articles furnished were not only to be ££ little things,” but such little things as Orr then — at the date of the order, and not in all time to come — needed. Plaintiffs had no right, without any notice whatever to Scott, to sell Orr goods for more than a year. — Creener v. Higginson, 1 Mason 323 (336); Rogers v. Warner, 8 Johns. 119 ; White v. Reed, 15 Conn. 457 (466); Whitney v. Groot, 24 Wend. 84. 7. The refusal of the court to charge that the facts, all of which are set out in the bill of exceptions, were not sufficient to show that Orr needed the articles furnished-him, was wrong.— The same proof would have enabled him to set up a clothing store at Scctt’s expense. 8. Suppose, instead of giving the writing sued on, Scott had used the same words verbally to plaintiffs, in the presence or absence of Orr ; and thereupon Orr had bought the goods, which were charged to him, and for which he afterwards settled, and then left the country. Would not the case be within the statute of frauds ? and could plaintiffs recover against Scott 1 Parsons on Contracts, p. 499 ; Burge on Suretyship, p. 22 ; 12 Pick. 133 ; 4 Yerger 576; 2 Term R. 80. If this position is correct, it shows that Scott’s undertaking was collateral, and not primary. The writing does not alter the character of the transaction ; it is only evidence of it. 1. The instrument on which .the action is founded, is not a collateral, but a direct undertaking on Scott’s part to pay for the goods which Myatt & Moore might let Orr have under it. Therefore, no notice of acceptance, or demand of payment, was necessary. — Bates v. Starr, 6 Ala. 697 ; Oliver v. Hire & Le Baron, 14 ib. 250 ; Donley v. Camp, 22 ib. 659; 40 Law Lib. 37 (29). 2. The note given by Orr did not extinguish or affect Scott’s liability: the note was not paid; it was not taken in satisfaction or extinguishment of Scott’s liability ; there was no extension of time, and no new consideration. — Muldon v. Whitlock, 1 Cow. 290, 306. 8. The contract was a continuing, as well as a direct undertaking, and bound Scott until he gave plaintiff’s notice to furnish no more goods on its credit. — Pitman on Principal and Surety (40 Law Lib.), 39 (29); 2 Bouv. Inst. 59 § 1394 ; Parsons on Contracts, p. 508 ; Graham v. O’Neill, 2 Hall’s Rep. 474. 4. The last charge requested was properly refused, because the court could not pass on the sufficiency of the evidence: that was a question for the jury exclusively.