Timberlake v. JR Watkins Co.

209 N.E.2d 909, 138 Ind. App. 554, 1965 Ind. App. LEXIS 540
CourtIndiana Court of Appeals
DecidedSeptember 9, 1965
Docket20,282
StatusPublished
Cited by11 cases

This text of 209 N.E.2d 909 (Timberlake v. JR Watkins Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timberlake v. JR Watkins Co., 209 N.E.2d 909, 138 Ind. App. 554, 1965 Ind. App. LEXIS 540 (Ind. Ct. App. 1965).

Opinions

Wickens, J.

A motion to dismiss this appeal was filed byappellee. It raises certain questions relating to the preparation of the transcript and it complains of inadequacies in the record. We have examined the record and find that the clerk has certified the transcript as containing that part of the record requested by the praecipe. The certification recites that such record is true, full, complete, and correct in accordance with said praecipe, which is set out in the transcript immediately preceding said certificate. Appellee has made no effort to supply any alleged omissions as permitted in our Supreme Court Rule 2-18. We therefore assume the missing record, if any, is unnecessary for the purposes of this appeal. As to the objections about alterations in the transcript and the implication of a false record, we are satisfied that appellants’ attorney has the obligation to see that this work is done, and has so performed, in good faith, a task which requires more than supervisory attention.

“It is incumbent upon an appellant to bring a proper record to the reviewing court. If a clerk does not understand his duty, appellant’s attorneys ought to assist him.” Ind. App. Pract. and Proc. in Civil Cases, p. 25» Bobbs-Merrill Co., 1962.

The record in a duly authenticated transcript imports absolute verity. It cannot be aided, varied, or contradicted by extrinsic evidence. Bozeman et al. v. Cale et al. (1894), 139 Ind. 187, 191, 35 N. E. 828; Rees et al. v. Rees et al. (1961), 131 Ind. App. 616, 621, 172 N. E. 2d 435.

The affidavits with appellee’s motion do not affect the proper certificates to the transcript. We find substantial compliance with the Supreme Court Rules and the motion to dismiss is now overruled.

[557]*557Appellants were defendants in a suit on two written agreements. Appellee recovered a judgment and appellants assign error in the overruling of their motion for new trial.

Appellant, Everett Timberlake, became a distributor of the products of plaintiff-appellee under a written agreement dated February 19, 1953 wherein he is called “purchaser.” Essentially, this contract, on a form prepared by appellee, is a purchase agreement providing for the sale and delivery of company’s products at a list price less discount and providing for shipping and payment of same.

Stella Timberlake, the other appellant, signed an agreement bearing the date of June 1, 1952, which recites that in consideration of one dollar and the extension of credit and sale and delivery of merchandise to Everett Timberlake, she (and others no longer parties to this proceeding) absolutely and unconditionally insure, guarantee and promise due payment up to $3000 of all indebtedness to the company now owing or hereafter incurred by said Everett Timberlake. In this instrument, Stella is called “surety.”

There was no dispute in the evidence and the court directed the jury to find a verdict for plaintiff-appellee. Everett admitted owing the account for a sum in excess of $3000, and Stella was shown to have executed the agreement mentioned.

Appellants declare that the second agreement is a “surety-ship agreement” and is void because, they say, it was executed on Sunday, and that there is “lack of mutuality, want of consideration, failure to create a valid suretyship agreement for the reason that no tripartite relation of principal creditor, principal debtor or obligor, and surety, existed at the time the alleged Suretyship Agreement was signed”; . . .

Questions saved by appellants and urged here were raised by a demurrer and by a motion for new trial. Appellants’ nine paragraphs of answer mention other questions which they have expressly waived including any question relating [558]*558to instructions except the peremptory instruction for directed verdict, and including as waived are any questions about the status of the account, payment and laches.

Appellants’ demurrer and most of appellants’ argument on the merits hinge on the question of whether these agreements create a “suretyship” as appellants use this term. Appellants contend that when Stella signed an agreement in 1952 no obligation then existed on the part of Everett moving to appellee. It is insisted that this situation constitutes a failure to establish the tripartite relationship essential to a surety agreement.

We find that similar agreements have been construed by the courts of this State to be those of suretyship. Hess v. J. R. Watkins Medical Co. (1919), 70. Ind. App. 416, 420, 123 N. E. 440; Wright v. J. R. Watkins Co. (1928), 86 Ind. App. 695, 698, 159 N. E. 761.

It is a frequent general holding that suretyship involves a tripartite arrangement, that is a principal debtor or obligor and a valid subsisting debt or obligation for which the principal is responsible and an undertaking by the surety to make himself collaterally liable. 26 Ind. Law. Encyc., Suretyship, § 3, p. 461.

No reason has been advanced to show that the agreement in question cannot be more than merely one of suretyship, as that word has been used in a limited or strict sense. We think it is capable of being a contract of suretyship under certain facts (i.e. where a debt already exists) and under a different set of facts, being one of guaranty or one of indemnity. It appears that was the theory on which the trial court proceeded.

Authorities have attempted with some success to differentiate between contracts of suretyship, guaranty, indemnity, and in some instances, insurance. At the same time we have not found any that indicate a contract might not be capable of having the attributes of more than one of these [559]*559classifications. In fact the Restatement of the Law of Security, § 82, p. 231 says “the term of ‘guaranty’ is used in this Restatement as a synonym for suretyship.” It further says:

“The possible convenience of having certain terms denote only particular types of surety obligations has resulted in some jurisdictions in the use of ‘suretyship’ as a general term and ‘guaranty’ as meaning some particular type of surety contract. In several states ‘guaranty’ is used as the general term and ‘suretyship’ with a restricted meaning. There has never been general agreement as to which term is to be the broader and which the narrower. Moreover, if both of the two terms are used with a restricted meaning, they do not suffice to cover even the main types of surety obligations.
“Suretyship obligations are contractual, and the important point of inquiry should be the precise undertaking of the surety and the duty of the principal. The recognition of the existence of different forms of contractual suretyship and the emphasis upon the obligation assumed in a particular case, are of greater significance than the distribution of labels to the various types of contracts.”

Following that suggestion, we proceed to ignore the label and place emphasis on the obligation assumed. Stella Timberlake executed an agreement which appellee accepted. This contract specified that if appellee would extend credit to Everett Timberlake, in consideration thereof, she promised to pay up to $3000 of the indebtedness thereafter incurred and owing by Everett. Such an agreement is not contrary to public policy; it contravenes no statute known to us, being in writing it is not within the statute of frauds.

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Timberlake v. JR Watkins Co.
209 N.E.2d 909 (Indiana Court of Appeals, 1965)

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Bluebook (online)
209 N.E.2d 909, 138 Ind. App. 554, 1965 Ind. App. LEXIS 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timberlake-v-jr-watkins-co-indctapp-1965.