Callender, McAuslan & Troup Co. v. Flint

72 N.E. 345, 187 Mass. 104, 1904 Mass. LEXIS 1094

• Court: Massachusetts Supreme Judicial Court
• Decided: November 29, 1904
• Status: Published

Opinion

Braley, J.

As the contract of guaranty did not become effectual until accepted by the plaintiff, whose place of business was in another jurisdiction, its argument, that the construction of the agreement depends on the law of the place of acceptance may be conceded. Nashua Savings Bank v. Sayles, 184 Mass. 520, 522.

But judicial notice cannot be taken of the laws of another State, which must be proved, and determined like other facts, and no evidence of their provisions can be received for the first time at the argument of a case in this court. And as the agreed statement of facts contains no reference to the common law of Rhode Island the presumption follows that in the case presented it is the same as our own. Hazen v. Mathews, 184 Mass. 388, 391.

The question to be decided is whether the contract was a continuing guaranty.

If there is no ambiguity in the agreement itself, the answer must be found from the terms of the instrument alone, but as the language used is open to more than one construction, resort may be had to extrinsic evidence to determine the intent of the parties. Bent v. Hartshorn, 1 Met. 24. Sullivan v. Arcand, 165 Mass. 364.

It appears that Joseph Sherin, the debtor, desiring to buy goods on credit from the plaintiff, and it not being willing to open an account with him, at his suggestion the plaintiff wrote a letter to the defendant asking him if he would become responsible for the amount of the sale.

There is no evidence that before this time the defendant had been requested by Sherin to become a guarantor, and the letter must be considered as the first intimation or request made to him that he should so act.

The language of the letter thus becomes important as expressing the nature of the pending transaction with Sherin which the defendant was asked to guarantee. It shows that the' purchase intended is limited to goods bought on the day of its date, and. though the phrase “ you would guarantee any purchase he might make from us ” is used, it is a part of the sentence which states the proposed sale and refers to it. And when the defendant had answered declining to become responsible, the reply of the plaintiff in explanation of its request, and referring to the contract of the debtor, contained this significant language, “ he distinctly telling us to hold the goods which he might select until we received the guarantee.”

If it was the purpose of the plaintiff to give Sherin a general credit for the sale of goods in the future for the payment of which the defendant should be bound, its letter contained no such statement, though it was written at a time when the proposed course of business between it and the debtor had been considered, and credit' had been asked for by him.

Obviously, when the guaranty was given, the defendant well might have understood that the debtor had contracted for specific goods on credit, and the plaintiff was unwilling to complete the sale by delivery until security for their payment had been given; and with this understanding he agreed to be liable for this transaction, but did not intend to become bound for succeeding purchases.

While it might be said that the plaintiff and Sherin really intended that the defendant should become responsible for a course of continuous dealing, and the language of the defendant’s engagement might be found open to such a construction, yet looking at the conditions under, which it was given, it is more consistent with a construction that all the defendant intended was to aid him in a single purchase of goods from the plaintiff, and as this was followed by payment the guaranty was fully satisfied. See Boston & Sandwich Glass Co. v. Moore, 119 Mass. 435; Cutler v. Ballou, 136 Mass. 337; Sherman v. Mulloy, 174 Mass. 41, 43.

This was the finding of the Superior Court, and as no error of law appears the judgment must be affirmed.

So ordered.