
    No. 7601.
    Court of Appeal, Parish of Orleans.
    Swift & Co., vs Nick Manale et al.
    BY DINKELSPEIL, J.
   The issues presented in this ease are as follows: The Plaintiffs, Swift & Co., sue Kick Manale and Veto Manale, one in the sin of §1338.60 and the other as guarantor, in the sum of §300.00.

It appears that Hiok Manale, in order to obtain credit from plaintiffs of goods, wares and merchandise before obtaining credit agreed to furnish surety or a guarantee in the sum of §300. and did so with Veto Manale as ■eewtíty, in the following words, to wit:

"In consideration of the sum of One Dollar* to the undersigned in hand paid, receipt whereof is hereby acknowledged, and the further consideration that Swift & Co., Ltd., sells goods, wares and merohan*-dies upon credit to Nick Manafte of Hew Orleans, Parish of Orleans, State of Louisiana, the undeS-signed generally and severally hereby guarantees to said Swift & Co., payment at maturity in accordance with the terms of sale of the price and value of all goods, wares and merchandise sold by it to the said Hick Manale, from time to time, on and after the date hereof until ten days notice in writing signed by the undersigned to said Swift & Co., of the withdrawal of this guarantee, it being understood that the liability of the undersigned hereby created shall not at any one time exceed two hundred dollars. The undersigned hereby waives notice of non payment and acceptance of this guarantee." Signed 3rd February, 1913. Veto Manale, witnessed by C. G. Erman.

After this contract, several years in existence, in 1917 plaintiff sold merchandise to S Hick Manale, one of the defendants herein on several oooaslons amounting to the sum of $638,66, on which account there was paid by Nick Manale on May 11th and 18th, 1917, first, $100.00 and subsequently $199'.00, leaving a balance due of $338.66.

There is no defense to this case by Kick Manale; judgment by default was confirmed against him and is final, from which no appeal has been taken.

Veto Manale, guarantor, files an exception of no cause of action, that there are no proper parties defends and and that the petition is too vague, general and indefinite to enable exceptor to properly answer. The exception of no cause of action was maintained by his Honor, the Judge a quo, from which this appeal is taken.

In the brief for exceptor there is quoted amongst other tlrtTigs the case of Douglas vs. Reynolds, 7 Peters, U.S. page 113. An examination of that case leads us to a contrary conclusion of the pleading. At page 133 of the opinion rendered by Mr. Justice Story, we find the following:

"The question involved is whether the guarantee contained in the letter is a limited or continuing guarantee, or, in other words, whether it covered advances, acceptances and instruments, in the first instanoe, to the amount of $8000. or terminated when these were discharged, or whether it covered successive advances, acceptances and instruments made to the same amount at any future time, totiea quoties, whenever the antecedent transactions were discharged. Upon deliberate consideration we are of opinion that it is the continuing guarantee, and we found ourselves upon the language, and the apparent intent and object of the letter. Every instrument of tilia sort ought to receive a falx, reasonable interpretation according to the true import of its terms, it being an acknowledgement for the debt of another there is certainly no reason for giving it an expanded signification or liberal construction beyond a fair Import of the terms," (Citing authorities)

Again at page 133, the Court goes on:

■If we examine the language or object of the present letter we think it is diffkoult to esoape from the conclusion that it was intended and was understood by all the parties as a continuing guarantee; the object was to assist Haring in business; it was not contemplated to be a single transaction or an unbroken series of transao- ' tions for a limited period."

Again at page 134 the Court goes on to express itself in this language:-

"It is rare that in oases of guarantee the language of the instrument is such as to make the division upon mu one the exaot authority for that of another. The whole words and clauses are to be construed together, and that sense is to be given to each which best comporte with the general scope and intent of the whole surety."

This court in 13th Court of Appeal, page 103, in the case of Dr. Joseph Conn vs. United States Fidelity & Guarantee Company et all, his Honor, Judge St. Paul, the organ of the Court, said:-

"The surety herein bound Itself as follows: 'Having taken full cognizance of the building contract it bound itself as surety for said contractor in the full•sum of $950. 00 in "favor of said owner, eto'. The surety was con-, demned by this judgment below for the sum of $950. to make up the deficit for the various subcontractors and for an additional sum of ten per cent attorney's fees, eto. The surety was liable not beyond the obligation of his bond, butfor that there could be no question of his liability," (Citing authorities)

The last case we find in this oonneotion is the one to be found in the Louisiana Reports, Volume 140, the oase of the Hibernia Bank & Trust Company versus the Succession of Cancienne, at page 970, reading from the syllabus !-

"One who signs as guarantor an instrument whereby he deolares that he binds himself to the amount stated in the instrument or the payment of any indebtedness of the third party named therein, of the guarantee named therein, existing whether axBcs&kKg or to be thereby incurred , expressly binding himself in solido with the principal debtor as if the debts were contracted by him in person, is not to be notified by the guarantee of the acceptance of the guarantee in order to render the guarantor liable for debts contracted on the faith of the guarantee." And at page 975 the Court goes*on to say:-

"Our opinion is that it was not neoessary for the Bank to notify the guarantor of the acceptance of his guarantee". (Giving many reasons and citing numerous authorities.) And at page 979, the Court goes on to define guarantee in this language: "A oontraot of guarantee like every other oontraot can only be made by the mutual assent of the parties. If the guarantee is signed by the guarantor, at the request of the other party, or if the latter1» agreement to aoceft is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration,however small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use completes the oontraot. But if the guaranty is signed by the guarantor without any request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guarantee is in legal effeot an offer or proposal on the part of the guarantor, needing an aooept-anoe by the other party to complete the oontraot,* The Century Digest, defining the word "guaranty*

at page 3644, gives the definition to be:

"Specially in lavr- liable to pay or perform, m law, to bind oneself that the obligation of another Shall be performed, or that something affeoting the right of the person in whose favor the guaranty is made shall be done or shall ooour. To guarantee a oontraot or an undertaking by another is to bind oneself that it shall be performed or carried out. To guarantee the collection of a debt is to bind oneself to pay it if it proves not collectable by ordinary means. To guarantee any subject of a business transaction is to make oneself legally answerable for it being exaotly as represented; as the seller guaranteed the quality of the goods; the carrier gave a Bill of Lading with the words 'Quality Guaranteed." meaning that he stipulated to be answerable for the quantity specified,without any further question or dispute as to amount,"
"One who binds himself to see the stipulation or obligation of another perforated; In general, one who la re aponelbis for the performance of aone not, the truth of aone statement, eto.*
Again, quoting from the sane authority: 'Specifically in law, a separate, independent oontraot by which the guarantor undertakes in qritlng, for a valuable consideration, to be answerable for the paynent of aone particular debt, or future debts, or ths perforaanoe of some duty, in oase of the failure of another person primarily liable to pay or perfora.

Colbrook on Cal lateral securities says:-

■One nay orally assume the debt of another, making hlnselfa debtor Inmedlately, but if the engagement Is a mere guaranty of the obligation of another it anst be In writing.* Cen. Dig. p. 3644.
■Guarantee. Law. An undertaking to answer for the payment of aone debt or the performance of aone duty in oass of the failure of another liable to such paynent or performance. Worcester’s Die. p. 645."
Guarantee. An engagement made, by a third person •to secure in fulfillment of an agreement: one who beoomes surety for the performance of anothers sots; to undertake that another shall perform a oertaln stipulation; warrant; be responsible for.* Hew Websterlan Die. 1813, page 388.

Numerous other authorities olted in appellant's brief are applicable in this oase. Bate Bros., vs. Maple, 145, Cal., 241; Rouss vs. Krauss, 137 N.C. 667; Fertig vs Bartels, 78. Fed. 866.

We therefore are of the opinion that the exception, particularly the exoeption of no oause of notion, and all the other pleadings are not relied upon save and exoept the one referred to, have no application In thla oaae.

It la therefore ordered, adjudged and deoreed that the judgment of the court a quo on the exceptions he over-ruled, and that thla oaae he remanded to the lower oourt there to he tried in aooordanoe with law and the view» expreased in thla opinion,-^ooeta^to abide the final judg-> ment of the oaao.

Judgment reve raed; oaae remanded.  