J. R. Watkins Co. v. Rutherford

199 So. 235, 240 Ala. 335, 1940 Ala. LEXIS 255

• Court: Supreme Court of Alabama
• Decided: December 19, 1940
• Docket: 1 Div. 116.
• Status: Published

Opinion

THOMAS, Justice.

This is a suit on a bond or contract of guaranty by the terms of which guarantors jointly, severally and unconditionally guaranteed to pay the indebtedness, the amount of which is written in the agreement, for certain goods, wares and merchandise sold by the appellant to one Stabler, the principal obligor, in the instrument on which suit is based.

The assignment of error superinducing the involuntary nonsuit was the overruling of demurrer to Pleas C and D, and the sustaining of demurrer to replications two and three to said plea.

Defendants Turberville and Rutherford, by special pleas, attempted to defend the suit on the ground that each signed the contract of guaranty on condition that one McDuffie was to execute the instrument as guarantor before delivery, and that the principal obligor delivered the instrument to plaintiff without procuring the required signature of said third party.

There was no error in the ruling of the trial court, which was according to the decision in O’Neal v. Turner, 230 Ala. 24, 158 So. 801, and the ruling in W. T. Rawleigh Co. v. Williams, 235 Ala. 623, 180 So. 272. The later cases collect the authorities to like effect by this court.

The judgment of the circuit court is affirmed.

Affirmed.

GARDNER, C. J., and BROWN and KNIGHT, JJ., concur.