Fain Grocery Co. v. Early & Daniels Co.

WalKEE, J. We concur with bis Honor, Judge Long, tbat there was no guaranty, which is a contract, or promise, to answer for tbe debt, default, or miscarriage of another, who is himself liable, in tbe first instance, for tbe same. Carpenter v. Wall, 20 N. C. (144), 279. It is in tbe nature of an undertaking tbat tbe thing promised by the principal shall be done and not merely an engagement jointly with tbe principal to do tbe thing. Coleman v. Fuller, 105 N. C., 328. Tbe plaintiff might well have known from tbe face of tbe telegram tbat there was no promise by Early & Daniels Company to pay tbe debt themselves, if Bateman & Company did not pay it, as it contained merely a statement as to tbe standing of Bateman & Company, and an expression of_ their opinion tbat they would pay all just claims against them. Tbe following will afford sufficient illustration of tbe law of guaranty, as applied by tbe courts in actual cases: “My friend W. goes to your city for goods on a short credit. I am satisfied you will be safe in selling him any amount be may see proper to purchase. From my long acquaintance with him I do not hesitate to say be is as punctual a man as any I know.” Hardy v. Poole, 41 N. C., 28. “Tbe law will not subject | a man having no interest in tbe transaction to pay tbe debt of another ¡unless bis undertaking manifests a clear intention to bind himself for tbat debt. Neither a mere request by one person tbat credit shall be given to another, a mere certificate to tbe correct moral habits of a third person, nor a mere expression of confidence tbat such third person will pay for goods which be is about to purchase, amounts to a guaranty.” 20 Cyc., 1412 C. Tbe following was beld not to be a guaranty: “Let M. have what goods be wants on four months time and be will pay as *461 usual.” Eaton v. Mayo, 118 Mass., 141. “A writing recommending another as one on whose integrity and punctuality dependence may be placed, and assuring the one to whom it is addressed that the third person will" comply fully with any contract that may be entered into with him, does not import a guaranty of the performance of such contract.” Cl erk v. Russell, 3 Dall. (U. S.), 415 (1 L. Ed., 660); Russell v. Clark's Executors, 7 Cranch., 69 (3 L. Ed., 271). Clerk v. Russell, supra, would seem to be identical with this case. There the language was, “You may be assured of their complying fully with any contract, or engagements, they may enter into with you,” and yet this was held not to import an undertaking or guaranty, by which the party, who used the language, incurred a personal liability. Many other authorities might be cited in support' of our view, but it is needless to do so, or to pursue this subject further. The jury found that there was no fraud practiced by Early & Daniels. They did not know what the plaintiff had communicated to Bateman & Company, and that they wished them to become responsible for the debt if Bateman & Company did not pay it. If Bateman & Company concealed the facts from the defendants, it was not the latter’s fault, but the wrong of Bateman & Company, for which the defendants cannot be required to answer. Plaintiff trusted Bateman & Company, as his agents, in the matter, and must look to them for redress of any injury or grievance growing out of their wrongful act. As between two innocent parties, the one who put it in the power of another, acting in his behalf, to do the injury must bear the loss. No error.