Rice v. Filene

Dewey, J. The claim of the plaintiffs arises upon a contract [234] for the sale of goods to Isidore Filene on the 10th of October 1861, the payment for which it is alleged that the defendant guaranteed. If no indebtedness has arisen on the part of Isidore Filene upon that contract, there is nothing for the guaranty to attach to, and for that reason the guarantor should be discharged. On recurring to the facts, it will be seen that some delay arose in delivering the goods, and of this the vendee complained by his letter of the 13th of October. He did not, however, repudiate the contract, but asked the plaintiffs to fulfil the same by immediately forwarding the goods. In this state of facts as to the dealing between the parties, the defendant gave his guaranty. The goods were forwarded to Isidore Filene on the 18th of October, and, if he had then accepted them, we suppose no question could have arisen as to the liability of the defendant as guarantor. The vendee, however, was dissatisfied with a portion of the goods sent, but subsequently his objections were withdrawn, and, upon an allowance of ten per cent, discount upon the bill, all the goods were finally received and held by him under the purchase from the plaintiffs. The present inquiry .is, whether this subsequent acceptance of the goods upon a discount of ten per cent, by operation of law discharged the guarantor from all further liability. If this new arrangement had imposed upon the vendee obligations in addition to those existing under the contract of October 10th, or if the time of credit had been thereby extended beyond that of the contract as it existed when the defendant signed the guaranty, such might have been the effect. But such was not the case. It was contended by the defendant that upon these facts he was discharged from his guaranty, unless he assented to this alteration with the understanding that he was to continue liable. The court properly refused thus to rule, holding that no such consequence would result from the acceptance of the goods upon the discount above stated, unless there was an express agreement, verbal or otherwise, assented to by the plaintiff, that the defendant should be discharged from his guaranty. Nor would [235] the letter of Isidore Filene, in reference to the goods being sold to him on his exclusive credit, necessarily defeat the guaranty. The objection that, under the declaration in the present case, the subsequent agreement as to the receipt of the goods upon the deduction of ten per cent, was fatal to the right of the plaintiffs to maintain the present action, is not sustained. The sale of goods, the payment of which was guaranteed by the defendant, is the sale of goods bargained for on the 10th of October. The liability was for the goods then ordered. The subsequent acts of these parties as to an abatement in price were based upon that sale, and the bill of parcels was rendered as of that date. The delay in forwarding the goods, and the fact that the time of credit was understood by the parties to be computed from the 10th of October, were distinctly alluded to by the vendee in his letter to the plaintiff, as well as the quality of some of the goods, as matters of complaint for which he claimed the right to repudiate the contract; but he waived the right so to do upon the allowance of ten per cent, discount from the prices stated in the bill. The further objection is urged, that the court improperly refused to rule that the action was prematurely brought, and that there was no evidence from which it was competent for the jury to find that the cause of action had accrued at the date of the writ But it seems almpst necessarily to follow from the view we have taken of the previous question, that the judge properly refused so to rule. If the contract under which the goods were eventually sold was the contract of the 10th of October, then of course the term of credit had expired when this action was brought. If, however, the sale is to be-deemed a sale on a credit commencing on the 18th of October, or some later day, then of course the action was prematurely brought. We think upon the evidence that it was competent for the jury to find that the time from which the credit of four months was to be computed Was the 10th of October. Exceptions overruled.