
    No. 632
    WATKINS CO. v. HARTZELL et
    No. 19860.
    Supreme Court
    On motion to certify.
    Dock. June 2, 1926;
    4 Abs. 379.
    1140. SURETYSHIP — Is a contract which provides for the unconditional “Promise and guaranty” of any indebtedness arising under a contract one of suretyship or one of guaranty?
    Attorneys — Myers & Myers for Watkins Co; M. B. Trainor, Mannix, Crawford & Billingsley for Hartzell et; all of Greenville.
   The J. R. Watkins Company brought this against Elmer Hartzell and other alleged sure-action originally in the Darke Common Pleas ties to recover a balance due under a contract entered into by and between the J. R. Watkins Company and one R. B. Wenger.

The agreement in question contained in part the following:

“We, the undersigned sureties, do hereby waive notice of the acceptance of this agreement and diligence in bringing action against the second party, and jointly, severally and unconditionally prmoise and guarantee the full and complete payment of said indebtedness, the amount of which is now written in said agreement, and for said goods and other articles, and the prepaid freight and express charges thereon, at the time and place, and in the manner in said agreement.”

The Common Pleas directed a verdict for the Watkins Company for the full amount and entered judgment thereon, which judgment was reversed by the Court of Appeals on the ground that said contract was one of both agency and suretyship and that therefore evidence should have been admitted to support

The Watkins Company in the Supreme Court the defenses claimed, contends:

1. That the contract in question is one of suretyship and that therefore the claimed defenses cannot be set up because the signing of the contract is admitted and is one of surety.

2. That the contract is not a contract of guaranty but of suretyship.  