Drucker v. Heyl-Dia

As the complaint was dismissed on plaintiffs’ evidence, such evidence is entitled not only to belief but to all favorable inferences that can reasonably be drawn therefrom. The facts are as follows, viz.: On April 25, 1905, one of the plaintiffs wrote to defendant the following letter: “ I am informed that you agree to guarantee the payment of any goods purchased by Mr. F. Samson. Will you please write me a letter to that effect and oblige yours truly.” On April 29, 1905, this letter was received by defendant who wrote the following reply: “ In reply to *143yóurs of to-day, I have much pleasure in guaranteeing the payment of Mr. Norman Samson’s account, or the Norman Samson Company’s account, up to $1,500, providing your firm will grant him or them a credit of thirty days. Mr. Samson shall be allowed, as an alternative, to pay you every second payment by a ninety days’ note, the note to be endorsed by me.” Said Samson never asked to be allowed to give such note, nor did the Samson Company. Acting on this guaranty plaintiffs sold and delivered to the Samson Company, between August 21, 1905, and October 4, 1905, merchandise to the amount of $272.75, no part of which money has been paid although payment has been duly demanded. It seems to us that the letter of defendant and the acts of plaintiffs show prima facie a complete meeting of the minds as to the contract of guaranty, without any further or formal notice to defendant of the plaintiffs’ acceptance of the guaranty, assuming none was given, especially as defendant’s relations with the company should have kept him informed as to transactions between plaintiffs and said company.

It was error for the court to dismiss the complaint on plaintiffs’ evidence, and the order and judgment appealed from must be reversed and a new trial granted, with costs to appellants to abide the event.

Fitzgerald and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.