Rouss v. Creglow

Given, J. 1 I. The written contract of guaranty sued upon is as follows: “$2,500.00. May 7, 1892. For and in consideration of the sum of one dollar to us in hand paid by Charles Broadway Rouss, of the city of New York, receipt whereof is hereby acknowledged, I, we, or either of us, do hereby guarantee the prompt payment to him of any sum, up to twenty-five hundred dollars, which is now or at any time hereafter may become due and payable to him by Creglow Bros, upon open account for goods sold and delivered, or upon any note or evidence of debt given upon account of such sales and deliveries. This guaranty shall apply to all indebtedness which may accrue at any time Avithin one year from this date, and before the personal service by us upon said Rouss of written notice to the effect that we will not be liable for any debt contracted after the service of such notice. Notice of the acceptance of this guaranty, and notice of any credit extended on the faith thereof, is hereby waived. [62] The said Rouss is .at liberty to extend the time for payment of any such indebtedness, without notice to' us. We do hereby waive the benefit of all exemption laws of every description, including the right of homestead, as against any liability arising under this instrument. It is understood and agreed by the party .giving this instrument as collateral security that he or they .are to remit at the rate of 10 per cent, per week of the open account of indebtedness,whatever it is or may hereafter become So long as this is done, they have the privilege of ■extending this instrument for twelve months from its date. In the event of a failure to do this, it is understood that this instrument immediately becomes due. It is also understood that they have the privilege of ordering an equal amount of goods to the remittance sent, even should the remittance 'be in excess of the 10 per cent, per week. It is also understood that proceeds for shipments made O. O. D. by freight or express shall not be construed as a remittance to be applied on the 10 per cent, per week; in other words, remittances •must accompany the orders, or be received before orders are. filled, to be applied on the 10 per cent, agreement. It is further understood that the sureties are fully cognizant of these terms. Greglow Bros. M. A. Greg-low.” The account aga'nst Greglow Bros, set out in the petition shows a balance of one thousand, five hundred and five dollars and twenty-seven cents due to plaintiff on May 7,1892, and a continuous course of dealing from that date to November 30, 1894, with a balance of one thousand and two dollars and ninety-five cents then due to plaintiff. The account also shows that the credits largely exceed the 'balance due May 7, 1892, and the amount of purchases made between that date an 1 May 7, 1893. From this it is plear that the balance of one thousand and two dollars and ninety-five cents, due November 3, 1894, and for which judgment is asked, is for merchandise purchased after May 7, 1893. By the [63] demurrer, the question is raised whether appellee is liable, under said contract of guaranty, for the indsbtedness incurred after one year from its date, namely, after May 7,1893. 2 II. Appellant’s contention is that this is a continuing guaranty, limited only by notice of its termination, or by the lapse of a reasonable time; and appellee 'contends that it is limited by its own terms to one year from its date. Appellant cites Pratt v. Matthews, 24 Hun. 386, and Powers v. Clarke, 127 N. Y. 417 (28 N. E. Rep. 402), to the effect that the words “at any time hereafter” tend strongly to show that the guaranty is a continuing one. Such language, standing alone, does so tend, but not when followed, as in this case, by a provision expressly limiting the guaranty “to all indebtedness which may at any time accrue within one year from this date,” — the date of guarani y. We think it entirely clear that the words, “or at any time hereafter” are qualified by the words “within one year from this date,” and that the provision as to notice is for notice within the year. In Shickle, Harrison & Howard Iron Co. v. Council Bluffs City Water Works Co., 83 Iowa, 397, it is said “that, in construing contracts of guaranty, technicalities should be avoided, and the reasonable intent of the parties, as it may be gathered from all parts of the contract, should prevail.” Thus construing this contract, it is plainly a guaranty for one year from its date, and does not admit of any other, interpretation. [63] III. Appellant filed an amendment to his petition as follows: “And now plaintiff amends his petition by stating, in addition thereto1, that hé intended the written instrument of guaranty to cover goods sold and credit extended after one year from the date thereof, as well as before such time, and that he accepted said instrument of guaranty, and sold and delivered goods [64] fipofi Credit to sáid Oregldw Bros* Under tod id pursuance df said written instrument, and in reliance thereon, Understanding and intending that it covered sales made and credit extended after one year from its date, as well as before; and the defendant at all times well knew that he was so acting with such understanding and intention, and had reason at all times so- to- know, yet remained silent, and suffered the plaintiff so to act, with full knowledge that he was so acting, and acquiesced therein without notice or objection.” Appellant cites section 3652 of the Code of 1873, which is as- follows : “When the terms of an agreement have been intended in a different sense by the parties to- it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” Api>ellant contends that this section “applies to any language, whether it is fairly susceptible of the sense in which the party understood it or not.” Hop-wood v. Corbin, 63 Iowa, 218; Oil Co. v. Montague, 65 Iowa, 67; Chicago Lumber Co. v. Tibble’s Manufacturing Co., 80 Iowa, 369; and Evans v. McConnell, 99 Iowa, 326, are cited as supporting these contentions. In each of these cases wherein section 3652 was applied, the contract was either held to be susceptible of different constructions, or the question whether it was so susceptible was submitted to the jury. Counsel say they do not find any case construing this statute to be limited to cases where the writing was fairly susceptible of different meanings; but we are not referred to, nor do we find that it has ever been applied to, any other. In Walker v. Manning, 6 Iowa, 520, it was held not to apply, for the reason that “there is nothing in the testimony from which it can be inferred that the terms of the agreement have been intended by the parties in a different sense.” By this contract, appellee became a surety, and, under familiar rules, his liability is not to [65] be extended by implication. “To 'charge him beyond its terms, or permit it to be altered without his consent, would be, not to enforce the contract made by him, but to make another for Mm.” Brandt, Suretyship, section 80; Gongower v. Association, 94, Iowa, 499. To extend this plain and' unambiguous contract beyond the year to wMch it is limited, merely because appellant so intended it, .and because appellee so- knew, would make a new contract. This contract being susceptible of but one construction,, appellant had no reason for his alleged understanding of it, and .appellee’s liaWlity cannot be extended because of that unwarranted understanding, even if he knew it. The demuirer was properly sustained, and the judgment is therefore affirmed.