Thompson v. Glover

JUDGE HINES delivered the opinion of the court. T. B. Glover, of the city of Louisville, Kentucky, having shipped to appellant, in the city of New York, twenty-three hogsheads of tobacco, and desiring to draw on appellant for their full value, it was agreed between appellant, through his agents, Lewis & Bro., in the city of Louisville, and appellee, that in consideration that appellant would pay said draft, appellee would make good to appellant any loss he might sustain by reason of the tobacco failing to sell for the amount thus to be advanced. At the time of the agreement appellee executed the following paper, which was forwarded by Lewis & Bro. to appellant in New York, to-wit: "Louisville, Ky., May 26th, 1876. '"Mr. S. E. Thompson, New York: ‘ ‘ Dear Sir : My brother, T. B. Glover, having this day shipped to you for his account twenty-three hogsheads of tobacco marked [giving numbers], and in view of his drawing for full cost of same, I hereby agree to secure you against any loss that this shipment may make, and in the event of any loss, bind myself to pay it. "(Signed), Thos. H. Glover.” On the same day, and at the same time, T. B, Glover drew a one-day. sight-draft for $1,943.22, addressed to appellant, New York, and payable to the order of appellee, which was indorsed by appellee, accepted by appellant and paid by [195] him at maturity. The tobacco was sold and failed to realize the amount of the draft by $854.39, °f which fact appellee was notified within ten days, and failing to pay, this action was instituted. The only question presented by the appeal, necessary to 'be considered, is whether appellee was entitled to notice of •acceptance of the guaranty. - It is well established that there must be an acceptance ■of the offer of guaranty, and a notice, express or implied, to the guarantor of such acceptance. The reason of this rule lis, that the guarantor may have, an opportunity of arranging his relations with the party for whose benefit or in whose favor the guaranty is given. The rule should not be pressed beyond this reason. When the whole of the transaction is •connected, and of such a nature as to give the guarantor this Information, no specific or formal notice is necessary. In 'the case under consideration the agreement to accept, made ■with Lewis & Bro. for appellant, was contemporaneous with the guaranty, and was the consideration therefor, and all the parties being privy to the whole transaction, no specific notice was necessary. (Wildes v. Savage, 1 Story, 22; Bleeker v. Hyde, 3 McLean, 279; Chitty on Contracts, 744, note b1; Parsons on Contracts, vol. 2, page 13; Steadman v. Guthrie, 4 Met., 153; Fells on the-Law of Guaranty, page 523; White v. Reed, 15 Connecticut, 463; Smith v. Donn, 6 Wendell, 543.) The minds of all the parties met, and the contract was •completed at' the time of the execution and delivery to Lewis & Bro. of the writing .by appellee and of the drawing ■of the draft. The only notice that could have been of any "benefit to appellee, and to which he was entitled, was the ¡notice of the amount that the tobacco fell short, and the [196] failure of T. B. Glover to pay the same. This notice appellee received within a reasonable time. (2 Bush, 566; Bowman v. Curd.) Judgment is reversed and cause remanded, with directions, to enter judgment for appellant.