Hueske v. C. E. Broussard & Co.

Walker, P. J. Com. App. There being no statement of facts in the record, it will be presumed that the judgment was warranted by the testimony; and all presumptions are in favor of the verdict. Neither is there a bill of exceptions; and the only question which may be revised on this appeal is, whether the plaintiffs’ petition afforded a sufficient basis to support the judgment. . If evidence might have been offered under the allegations of the petition, to warrant a judgment for the plaintiffs, it will, for the purposes of this appeal, be intended that it was adduced on the trial, and that the judgment would be sufficiently supported thereby. The question, in effect, then is, whether the plaintiffs’ petition set forth a cause of action. It is contended by the appellants that it did not, because the petition showed a liability on the part of defendants collateral to the notes of Wilman & Co.; a contract of guaranty by defendants for their payment, and that the obligation created by it was destroyed, according to the petition itself, by the release of Wilman & Co. by the plaintiffs. It is not sufficient, in order to maintain the defendants’ demurrer to the petition on the ground above stated, that the written promises of the defendants to pay the notes of Wilman & Co. were susceptible of a construction, when considered distinctly from any other evidence which may have explained the meaning and contracts of the parties, which would be consistent with mere guaranties for the payment of the several notes; for if, with other competent evidence, it was admissible to show that the undertakings of the defendant were original promises to pay the notes unqualifiedly, for a sufficient consideration, and not as guarantors to do so, in the event of the failure of the makers to do so, the cause of action would be complete and valid against them. The petition alleged that the defendants accepted and assumed the payment of said notes in writing; and it set forth, as to two of the notes, the form of the written [205] promise, as follows: ‘c Accepted, payable ninety days from January 13, 1870, with interest from this date at ten per cent, per annum.” “Whether a contract is collateral or original may be a question of construction for the court, and then it is for the court; but it is often regarded as a question of fact, and then it is for the jury.” 2 Parsons on Con. (5th ed.), p. 11. In this case it would seem that a proper construction of the contract would be a question of fact for the jury, because the terms of the several promises in writing relied upon by the plaintiffs were such as to allow of a liability on the part of defendants as either collateral or original undertakings on their part, according as the facts which attended and formed a part of the contract would show them to be the one or the other; whether the obligation was that of guarantors, or an absolute contract by them to pay the money absolutely, and independently of any liability of other persons. It is laid down that no special words or form are necessary to constitute a guaranty. “If the parties clearly manifest that intention, it is sufficient; and if the guaranty admits of more than one interpretation, and the guarantee has acted to his own detriment, with the assent of the other party, as by advancing money, on the faith of one interpretation, that will prevail, although it be one which is most for the interest of the guarantee.” 2 Parsons on Con. (5th ed.), 5. The written terms which are used, and which have been quoted, are in themselves doubtful, and suggest, themselves, that there may be something in the transaction which gave rise to them, which will be explanatory of, and render clear, their meaning, and thus afford light for the interpretation of the contract as it was really intended and actually agreed to. The term, or word, “accepted,” is indefinite and unmeaning when read as an indorsement of a promissory note. It has, however, sig [206] nificant and apt relevancy to a draft, if it were drawn upon the person who thus indorsed it. Again, the failure to use the familiar and common words appropriate to signify the relation of guarantor, if it was so meant, as, “ I guaranty payment of the within, ” or similar words, and also the fixing a specified time for payment, and varying the terms of the note by increasing the rate of interest, are intrinsic facts on the face of the paper, which are not only sufficient, but which invite the introduction of parol evidence as to the facts and circumstances which existed at the time of making the contract — not to vary, alter or contradict it, but to construe and explain it according to the intention of the parties. “A liberal interpretation is specially to be given to all commercial contracts. They are not to be construed strictly and technically, like bonds, which are generally technical in their form, and drawn with caution, but all the facts and circumstances in the transaction which may be indicative of the intention of the parties are to be considered. And this rule stands upon the manifest ground, that, as these contracts are almost invariably drawn up loosely and informally, leaving much to inference, and often requiring a consideration of extrinsic circumstances to render them intelligible, a strict construction would frequently defeat the objects and intentions of the parties, and render them an unsafe basis for those extensive credits by which the commerce of the world is carried on. Contracts of guaranty, for instance, are always to be construed in this mode.” Story on Con., sec. 6á0a. The indorsement which was made by the defendants appearing, as has been seen, to be doubtful, and requiring, in order to arrive at the true meaning, further evidence, parol evidence was clearly admissible to ascertain the intention of the parties. See sec. 670, Story on Con. It was held in Cook v. Southwick, 9 Tex., 615, that it [207] was competent for a person not the payee, who signed his name upon the back of a promissory note at the time of its inception, without any words to express the nature of his undertaking, to show by oral evidence the real obligation intended to be assumed at the time of signing. The plaintiffs alleged that the defendants “assumed” the payment of the notes referred to. This allegation imports an original undertaking on their part to pay the debts or notes—to pay them without condition, and not subject to, or connected with, any obligation of the makers of the notes, nor dependent on their performance of any act in relation to said notes. An independent obligation, in a word, to pay the notes on their own ac-, count, under a contract to do so, founded upon a valuable consideration — not an obligation collateral to that of the makers of the note. Such a contract was not a guaranty, nor a contract of suretyship; nor was it a technical indorsement of the note, according to eommercial law. If it was, then, such a contract, the release of the makers of the notes was an act which may have been wholly consistent with the objects, inducements and considerations which induced the contract made between the plaintiffs and defendants. Ample evidence, for aught that can be made to appear to us, may have been adduced on the trial to establish an original absolute contract on the parts of the defendants as the same was claimed to be by the petition. And this position is supported by the facts alleged in the petition descriptive of the terms of the written promises of defendants,— “Accepted, payable ninety days from January 13, 1870,” etc. This would be an appropriate form for an original promise to pay a draft drawn upon the acceptor; or to pay the notes upon which the acceptance was indorsed at the verbal request, or a separate written letter or order from the maker of the notes, requesting the defendants to pay said notes at ninety days when presented [208] for such acceptance. And it would be consistent with the existence of such a transaction, that the defendants may have had funds in their hands of the makers of the notes, on the faith of which such order or request was made, or that the defendants were indebted to the makers of said notes, and that the consideration of the acceptance and payment of the notes was the discharge and settlement of their supposed debt. In the cases supposed, there would exist no such privity of contract between the defendants and the parties to the notes as would constitute the former guarantors, to be affected by the release of the makers of the notes. We think there is no error, and that the judgment ought to be affirmed. Affirmed. [Opinion delivered May 6, 1881.]