Duncan v. Heller

The opinion of the court was delivered by McIver, A. J. The plaintiffs by this action sought to charge the appellant, J. B. Heller, as guarantor, by virtue of a letter of which the following is a copy: “Newberry, S. C., February 9th, 1877. “ Shumate & Duncan — Gentlemen : My sister, Elizabeth Heller, informs me that she is due you some one hundred dollars, for which you have a mortgage on her land, and she fears that you intend to push the matter. She has been down to see me to get help, and I am sorry to say that at the present time I am not able to help her, but if you will wait with her until next fall I will try and take up the mortgage. Hoping that you will consent to wait until fall, I remain yours respectfully. “ J. B. Heller.” There was no evidence that J. B. Heller had ever been notified by the plaintiffs of their acceptance of his offer to guarantee the payment of the note of Elizabeth Heller, if indeed the terms of the letter be regarded as sufficient to amount to such an offer. This we think was fatal to the plaintiffs’ case. While there may be a contrariety of decisions as to the necessity for notice of acceptance of a guaranty, we think the rule adopted by Parsons in his work on Contracts, vol. II., p. 14, is the correct one, viz., that every guarantor is entitled to notice of the acceptance of his guaranty, unless the transaction is such that of itself it gives him the requisite notice. Here, putting a construction [96] upon the terms of the letter most favorable to the plaintiffs’ case, it is very obvious that it was not an absolute and complete guarant3r, tint, nnly an offer to guarantee upon conditinn that .plaintiffs would wait with the principal debtor until the fall. Until that offer was accepted the contract was not complete and the defendant-JncuxEP.d no li»hih*ty The fact that forbearance was in., fact exercised cannot alter the case. The forbearance\ /Which alone could constitute the consideration of the contract j /upon which the appellant was sued, would not constitute such { j consideration unless the plaintiffs bound themselves at the time \ / the letter was received to extend such forbearance, even though j | they may have in fact afterward granted such indulgence. Thomas v. Croft, 1 Strob. 40. ■ It is argued here.that even if notice to the appellant that his offer to guarantee would be accepted, was necessary, that such notice was in fact given to the appellant through his agent, Elizabeth Heller. A sufficient answer to this is that there is no evidence whatever that she was the agent of the appellant. The mere fact that she carried the letter to the plaintiffs cannot be suffi- • cient to make her the agent of the appellant, for if so, in most if not all cases the rule which requires notice of the acceptance of the guaranty would be evaded, as the principal debtor ordinarity delivers the letter of guarant3r to the person to whom it is addressed, and he of course knows whether the guaranty is accepted and acted upon. If, therefore, the mere fact that he carries the letter is sufficient to constitute him the agent of the guarantor, so that his knowledge will be imputed to the guarantor also, then the rule which requires notice to the guarantor, and which is solely for his benefit, so as to enable him to take such steps as he may deem necessary to indemnify himself against the risk which he has assumed, becomes practically nugatory. The judgment of the Circuit Court is set aside and a new trial is ordered. Willard, C. J., concurred.