Unangst v. Hibler

The opinion of the court was delivered by Lewis, C. J. This is an attempt to make one man answer for the debt of another. In such a case the law is well settled, that the evidence of the promise must be “ clear and explicit, that there should be no room to suspect mistake, misapprehension, or any unfairness in the transaction:” Petriken v. Baldy, 7 W. & Ser. 430. “ It is the duty of the individual who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligations he is about to assume:” Russell v. Clark’s Executor, 7 Cranch 69. It is also well established that “a guarantor of future credit is entitled to notice from the party giving the credit, of his acceptance of the guaranty, unless the agreement to accept be contemporaneous with it:” Kay v. Allen, 9 Barr 320. In this case the evidence relied on comes from the plaintiff’s agent. It is not likely to lose anything material to the plaintiff as it passes through such a channel. The witness, told Unangst that he “ was selling for Hibler, and would not like to sell (to George Wenner) unless he made a Iona fide one — to be safe, you know.” Unangst observed, “if George Wenner is not good enough, I am.” The witness then replied, “ Yes, for $10,000, if you requested it.” But Unangst, although thus invited to make the request, did not do so. He said nothing more on the subject. He merely “smiled,” and afterwards asked the witness to take a drink. In this there is no “clear and explicit” contract to be liable for the goods to be furnished to Wenner — no “ explicit and plain declaration of the obligation.” There was no agreement between the parties at all. There was no acceptance of any offer of guaranty — no amount fixed by the parties, nor was there any subsequent notice of the amount furnished on the credit of the alleged guaranty. There was no evidence to justify the court in submitting to the jury the question of guaranty. Taking all that the witness stated to be true, it amounted to nothing like a contract between the parties. The court ought to have instructed the [154] jury that the plaintiff, under the evidence, was not entitled to recover. Judgment reversed and venire facias de novo awarded.