A. B. Kuhlman Co. v. Cave

WiNsnow, C. J. Tbis is an action upon a written guaranty. There is no bill of exceptions. Tbe case was tried by tbe court and findings made to tbe effect: Tbat on June 6> 1906, the plaintiff company made a written contract with one Leon H. Cave, by which said Cave agreed to canvass certain territory for the sale of certain publications to be ordered by bim from tbe plaintiff company and paid for by bim within thirty days from tbe date of shipment, and tbat on July 7, 1906, tbe defendant executed and delivered to the plaintiff a written instrument or letter, of which the material part was as follows: “I request tbat should Mr. Leon IT. Cave, ag’t, . . . order goods from you at any time after date of tbis letter of credit until further notice, tbat you ship same to order of said agent, and I hereby guarantee payment for the same within twenty days after tbe arrival of tbe goods at destination.” [280] That said Leon H. Cave subsequently and about tbe last of July, 1906, ordered and received from plaintiff goods to the amount of $163.98, which have never been paid for or returned, except that the sum of $5 was paid, whereby the defendant became liable to the plaintiff in the sum of $158.98. Judgment was rendered for this sum and the defendant appeals. It is plain that this judgment was erroneous. The writing sued on was simply a letter of credit and constituted an offer merely on the part of the defendant, which would not become a contract until accepted and notice of acceptance given to the guarantor. This has been so recently held by this court that no extended discussion of the principle is either desirable or necessary. Miami Co. Nat. Bank v. Goldberg, 133 Wis. 115, 113 N. W. 391. See, also, New Home S. M. Co. v. Simon, 104 Wis. 120, 80 N. W. 71. No acceptance or notice of acceptance was found by the court; hence no completed contract of guaranty was made and no liability incurred. By the Gov,ft. — Judgment reversed, and action remanded with directions to render judgment for the defendant.