Balfour, Guthrie & Co. v. Knight

Mr. Justice Benson

delivered the opinion of the court.

1. Section 1 of Chapter 154, Laws of 1913, reads thus:

“No person or persons shall hereafter carry on, conduct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the real and true name or names of the person or persons conducting such business or having an interest therein, unless such person or all of such persons conducting said business or having an interest therein, shall file a certificate in ■ the office of the county clerk of the county or counties in which said business is to be conducted, which certificate shall set forth the designation, name or style under which said business is to he conducted, and the true and real name or names of the party or parties conducting or intending to conduct the same, or having an interest therein, together with the postoffice address or addresses of said person or persons. Such certificate shall be executed and acknowledged by the party or parties conducting, or intending to conduct said business, or having an interest therein, before an officer authorized to take acknowledgment of deeds.”

*170 We are of the opinion that this act very clearly demands that the certificate therein prescribed shall be signed and acknowledged by all of the persons interested in the business. The case of Rennie v. Stelter (Mich.), 162 N. W. 997 , decided in May of the current year, is relied upon by plaintiffs to oppose this view. This was a case in which the plaintiffs were doing business under the firm name of “Rennie Coal & Supply Co.,” and the final conclusion of the opinion of the court is based upon the fact that the firm name contains the surname of all the parties interested in the business, who were three brothers by the name of Bennie. But if the case were directly in point as to the basis of the decision, it could not change our conclusion, since the language of the Michigan statute is different from ours and not nearly so clear upon the point. Section 5 of our statute reads as follows:

“No person or persons carrying on, conducting or transacting business as aforesaid, or having any interest therein, shall hereafter be entitled to maintain any suit or action in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in Section 1, and failure to file such certificate shall be prima facie evidence of fraud in securing credit”: Section 5, Chapter 154, Laws 1913.

The complaint alleges compliance with the provisions of the act, but the answer, as well as the evidence, discloses that the certificate is executed and acknowledged not by all of the persons interested in the business, but by W. J. Burns only. There is no doubt but that the resident partner, supplied with the proper powers of attorney, might execute the certificate for his associates in such manner as to make it their act, but he has not done so.

*171

2. There is no merit in the contention that the contract of guaranty is void for "want of expressed consideration. The authorities are practically agreed that a future credit to be extended to the debtor is a sufficient consideration and is clearly expressed in a writing similar to the one upon which this action is based.

3. The third ground of defendant’s motion for a judgment of nonsuit is well taken. The evidence upon this point is brief and is substantially as follows: Mr. Allen, the credit man of plaintiffs, had a conversation with G. ft. Knight, who was engaged in conducting a feed store, in which the latter was asked to furnish a guaranty for future credit. Among others, Mr. Allen expressed a willingness to accept the name of defendant, who is the father of Gr. R. Knight, upon such guaranty and thereupon returned to his own office and prepared the instrument in controversy. He sent it to G. R. Knight by a messenger and he in turn took it to his father and asked him to sign it. After a day or two defendant signed the instrument and returned it to his son who delivered it to plaintiff. There is not a word in the testimony to show that the defendant ever had any information indicating that plaintiffs had accepted his offer and were acting upon it. The case therefore falls within the rule announced in Rothchild Bros. v. Lomax, 75 Or. 395, 398 ( 146 Pac. 479 ), in which is followed the doctrine announced in Davis Sewing Machine Co. v. Richards, 115 U. S. 524, 527 ( 29 L. Ed. 480 , 6 Sup. Ct. Rep. 173), thus:

“A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration, however small, is acknowledged in the guaranty, the mutual as *172 sent is proved, and the delivery of the guaranty to him or for his use completes- the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them, except future advances to be made to the principal debtor, the guaranty is in legal effect an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.”

Counsel for appellant urges upon our attention, with special force, the cases of Davis v. Wells, 104 U. S. 159 ( 26 L. Ed. 686 ), and United States Fidelity Co. v. Riefler, 239 U. S. 17 ( 60 L. Ed. 121 , 36 Sup. Ct. Rep. 12), contending that they support the theory that the instrument in question is a requested guaranty which obviates proof of acceptance and that it is an absolute guaranty assuming an-obligation in present words and, as such, requires no notice of acceptance. The first of these cases is an action upon an instrument in writing which reads thus:

“For and in consideration of one dollar to us in hand paid by Wells, Fargo & Co., (the receipt whereof is hereby acknowledged) we hereby guarantee unto them, the said Wells, Fargo & Co., unconditionally and at all times, any indebtedness of Gordon & Co., etc.”

The opinion holds that the acknowledgment of the receipt of one dollar is conclusive evidence of acceptance. It is also held that the words of the instrument which we have italicized constitutes a waiver of notice of acceptance. From page 166 of the same opinion we quote as follows:

“If the guaranty is made at the request of the guarantee, it then becomes the answer of the guarantor to a proposal made to him, and its delivery to or for the use of the guarantee completes the communication between them and constitutes a contract.”

*173 In the present case, however, the record is silent as to any request made to the defendant by plaintiffs or any communication between him and plaintiffs. The request was made to the debtor and the writing was delivered by him to the plaintiffs.

The case of the United States Fidelity etc. Co. v. Riefler, 239 U. S. 17 ( 60 L. Ed. 121 , 36 Sup. Ct. Rep. 12), is one in which the guaranty was an indemnity bond, under seal, and the opinion holds that a bond under seal carries its complete obligation with the paper and if it is in fact accepted by the obligee, notice of such acceptance is not necessary. It is urged that the son in delivering the guaranty to plaintiffs acted as the agent of his father. There is nothing in the record from which such a conclusion can be reached. In Duncan & Shumate v. Heller, 13 S. C. 94, 96, defendant wrote a letter to a creditor of his sister asking for delay in enforcing payment of her debt and agreeing to see that the debt was paid. The letter was delivered to the creditor by the sister and in regard to the same contention the court there says:

“It is argued here that even if notice to the appellant that his offer to guarantee would be accepted, was necessary, that such notice was in fact given to the appellant through his agent, Elizabeth Heller. A sufficient answer to this is that there is no evidence whatever that she was the agent for the appellant. The mere fact that she carried the letter to the plaintiffs cannot be sufficient to make her the agent for the appellant, for if so, in most if not all cases the rule which requires notice of the acceptance of the guaranty would be evaded, as the principal debtor ordinarily delivers the letter of guaranty to the person to whom it is addressed, and he of course knows whether the guaranty is accepted and acted upon. If, therefore, the mere fact that he carries the letter is sufficient to constitute him the agent of the guarantor, so that *174 Ms knowledge will be imputed to tbe guarantor also, then tbe rule wbicb requires notice to tbe guarantor, and wbicb is solely for bis benefit, so as to enable bim to take sucb steps as be may deem necessary to indemr nify bimself against tbe risk wbicb be bas assumed, becomes practically nugatory.”

We conclude that tbe judgment of nonsuit was properly granted and is therefore affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.