MacEvoy v. Kerr
MacEvoy v. Kerr
Opinion of the Court
Opinion by
Defendant appeals from a judgment entered on a verdict in an action on a contract of suretyship wherein he became surety for the purchase price of merchandise bought from plaintiff.
H. J. Hallam, desiring to purchase a quantity of dye on credit, applied to plaintiff who refused to sell unless the former obtained a financially responsible person to guarantee payment of the account. Later Hallam returned to plaintiff’s office with the following letter dated June. 20,1916, and signed by defendant: “In reference to
The principal fact in dispute is the date on which the discontinuance of shipments was requested by defendant and the effect of the request. Plaintiff testified the second barrel was shipped July 7th and that defendant’s request to make no further deliveries was not-made-until the middle of Augusto On the. other hand defendant
Defendant’s agreement is an absolute one to become “responsible for payment of said goods” within thirty days and would seem to be sufficiently broad to cover all goods included in the contract amounting to 60Q. pounds monthly for a period slightly exceeding six months. Consideration of the question of defendant’s right to cancel the contract-'becomes unnecessary, since plaintiff voluntarily ceased making shipments at defendant’s request. In absence of evidence to establish the time for delivery or definitely fix the quantity of each shipment, we assume the contract was intended to be operative from its date, and, in fact, this was the construction placed upon it by the parties, as the first shipment was made on the day the guarantee was received. Taking the average daily supply as a criterion, the quantity shipped was sufficient to cover a period of twenty days and at the expiration of that time plaintiff’s duty would be to forward an additional supply. Whether such further shipment should be in quantities sufficient to meet defendant’s demand for a part or an entire month, was apparently left to the discretion of plaintiff who testified that in making shipments the quantity of each must necessarily depend upon the capacity of the barrel available at the time. The second barrel containing 501 pounds was also insufficient to make up the quantity required for the.'ensuing month, and whether or not there was an overshipment, necessarily depends upon the time of making -the third delivery. As the
The assignments of error are overruled and the judgment is affirmed.
Reference
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- Contracts- — -Surety ship — Construction—Sales. In an action' on a contract of suretyship it appeared that plaintiff and defendant’s principal entered into an agreement on June 20, 19Í6, under which the former was required to furnish the latter six barrels of dye “delivery to be made 600 pounds monthly, at $2.75 per pound until January 1, 1917,” and defendant agreed to be “responsible for payment of said goods within 30 days.” No reference was made as to the time of the month on which shipments ' were to be made or whether there should be one or more shipments per month. The same day plaintiff shipped to defendant one barrel containing 398 pounds; and seventeen days later, on July 7th, he shipped another barrel containing 501 pounds,, making a total delivery of 899 pounds. Defendant requested plaintiff to delay further shipments until the goods delivered were paid for, and no further goods were delivered. In an action against the surety for the price of the goods shipped, defendant contended that the delivery of the second barrel within seventeen days from the delivery of the first was a sufficient departure from the terms of the contract to release him from liability. Held, (1) that defendant’s agreement was sufficiently broad to cover payment for all goods included in the contract amounting to 600 pounds monthly, (2) that defendant was not released from liability by reason of the fact that in the first month more than 600 pounds had been delivered where all the goods called for by the contract had not been shipped, so that it could not be said that he was required to pay for more than he had agreed to pay, and (3) a judgment on a verdict for plaintiff, for the price of both barrels will be sustained.