Andrews & Co. v. Tedford

Cole, J. The court gave to the jury four instructions — they all amount substantially to this: “ If the jury find that the contract sued on is a guaranty of the school oz’der, written on the opposite side, and was obtained with the expectation that it would be so written, and that no vote of the electors was had authorizing the issuance ot the order or the purchase of the furniture, then the oz’der is invalid and the defendant is not liable.” These instructions ignore important principles of law and material elements of fact involved in the case. For instance, if the defendant, as agent for the district township for the purchase of the furniture, made the contract and obtained the furniture (as appears from the testimony was the case), then, unless he had authority to and did bind his [316] principal, he is himself bound. Story on Agency, § 26é, and cases there cited; 1 Pars, on Oontr. (6th ed.) 65-6-7, and authorities cited in the notes. Again, a guaranty is a contract by one person to another for the fulfillment of a promise of a third person; but here the promise by the defendant is different from the obligation specified in the instrument which he claims he guaranteed. His promise is to pay at a different place and different time, and when the interest is considered it is a different amount. We do not say that it is impossible to mate a valid guarantee by one to another for the fulfillment in part of a promise by a third, but we do say and hold that it is not competent for a guarantor in writing, of the payment of a specified sum at a certain time and place, to show by parol that his obligation was that of guaranty for the fulfillment by a third party of a promise to pay the same or a different sum at another time and place. The instrument sued on is in writing and may not be varied by parol, and its proper construction was for the court, who should have said to the jury that it is an original promise for the payment of the sums named and at the time mentioned. We do not, therefore, discuss whether the school order is invalid, nor, if it is, what are the liabilities of a guarantor of it. Reversed.