Miami County National Bank v. Goldberg

113 N.W. 391, 133 Wis. 175, 1907 Wisc. LEXIS 9

• Court: Wisconsin Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Oassodav, O. J.

It was found by tbe court and is undisputed that tbe amount of money which tbe plaintiff is here seeking to recover is for and on account of overdrafts and advancements made by tbe plaintiff to tbe Goldberg Live Stock Company, of which the defendant’s son was tbe agent and manager. Tbe only ground for claiming a right to recover from tbe defendant is her letter to tbe plaintiff under date of March 10, 1896, set forth in full in tbe foregoing statement. Tbe request of tbe defendant therein contained for tbe plaintiff to “let” her son, “manager for tbe Goldberg Live Stock Company, malee overdrafts” in tbe plaintiff “bank to the amount of $800 to buy live stock with,” seems to be a sufficient expression of tbe consideration to satisfy tbe statute. Subd. 2, sec. 2307, Stats. (1898) ; Eastman v. Bennett, 6 Wis. 232, 241, 242; Williams v. Ketchum, 19 Wis. 231; Dahlman v. Hanmel, 45 Wis. 466; Young v. Brown, 53 Wis. 333, 10 N. W. 394; Waldheim v. Miller, 97 Wis. 300, 72 N. W. 869. Tbe request so contained in tbe defendant’s letter was for tbe plaintiff to allow tbe defendant’s son, as manager of tbe Goldberg Live Stock Company, to make overdrafts to tbe amount stated, with a hope that tbe plaintiff would accommodate the sou by so doing. The -undertaking on the part of the defendant was predicated upon subsequent advances to be made by the plaintiff. Such advances on such overdrafts were to be made by the plaintiff to the Goldberg Live Stock Company, or to the son as its manager. In other words, the letter, by implication, guaranteed the repayment of the advances so to be made to the stock company or to its manager to the amount stated. The undertaking of the defendant was collateral to the liability to be incurred by the stock company. Such being the undertaking on the part of the defendant, the question recurs as to her liability in this action. In an early case in this court it was held:

“A letter of credit containing the words, ‘I will guarantee that K. & Co. will pay for any amount of goods they may purchase in Uew York this fall, not exceeding,, $5,000/ was held to be a guaranty to pay if K. & Co. did not pay.” McNaughton v. Gonhlings, 9 Wis. 316, 320.

It is there said by the court:

“The words of the letter amount to, and were designed as, a present undertaking of guaranty, needing only to be acted on by any one for whom they were intended, with notice to the writer, in order to bind him.” Id.

That decision was based upon a case in the supreme court of the United States wherein it was held, among other things:

“A party giving a letter of guaranty has a right to know whether it is accepted, and whether the person to whom it is addressed means to give credit on the footing of it or not. . . . A demand of payment of the sum advanced under the guaranty should he made of the person to whom the same was made, and in case of nonpayment by him notice of such demand and nonpayment should have been given in a reasonable time to the guarantors; otherwise they would be discharged from the'guaranty.” Douglass v. Reynolds, 7 Pet. 113.

To the same effect, Davis S. M. Co. v. Richards, 115 U. S. 524, 6 Sup. Ct. 173. Such rulings are in harmony with well-considered adjudications in other jurisdictions. Thus, it has been held in a recent case in Pennsylvania:

“A guarantor of future credit or advancing is entitled to notice from tbe party giving tbe credit of bis acceptance of tbe guaranty, inasmuch as such notice enables tbe guarantor to know tbe nature and extent of bis liability, to exercise due diligence in guarding himself against losses which might otherwise be unknown to him, and to avail himself of the appropriate means in law and equity to compel the other parties to discharge him from future responsibility. . . . The corporation accepted and filled the order, but gave no notice of the acceptance to the guarantor. Held, that the "guarantor was not liable.” Acme Mfg. Co. v. Reed, 197 Pa. St. 359, 47 Atl. 205.

To the same effect: King v. Batterson, 13 R. I. 117; Be Cremer v. Anderson, 113 Mich. 578, 71 N. W. 1090; Pearsell Mfg. Co. v. Jeffreys, 183 Mo. 386, 81 S. W. 901; Winnebago P. Mills v. Travis, 56 Minn. 480, 58 N. W. 36; 1 Brandt, Suretyship & G. (3d ed.) § 205; 20 Cyc. 1404. In this last work it is said:

“An undertaking of guaranty is primarily an offer, and does not become a binding obligation until it is accepted and notice of the acceptance given to the guarantor. Such acceptance is not shown by the mere> performance of acts in reliance upon the offer.”

The giving of such notice is denied in the answer and is not found by the court, and there is no evidence that such notice was ever given. It follows that the action cannot be maintained.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the action.