Opinion
No. 31895.
November 11, 1935. Suggestion of Error Overruled January 13, 1936.
1. PRINCIPAL AND SURETY.
Gratuitous surety is favored by law and contract must be strictly construed to impose only burdens clearly within contract, which cannot be extended by implication, presumption, or construction.
2. PRINCIPAL AND SURETY.
Contract whereby sureties assumed buyer's prior indebtedness as shown by seller's books held to contemplate that liability be shown solely by seller's books, and books themselves must furnish information required with reasonable certainty without aid of parol evidence or looseleaf memoranda kept otherwise than in and as part of books.
3. PRINCIPAL AND SURETY.
Contract whereby sureties assumed buyer's prior indebtedness as shown by seller's books held to refer to "account books," meaning volumes bound or sewed together in which accounts are regularly kept, and excluding collections of loose and indeterminate memoranda.
4. EVIDENCE.
Term "account books" may now include modern book of detachable leaves, but leaves must be of such appropriate uniformity of material as reasonably to constitute leaves of account book in which they are contained.
5. PRINCIPAL AND SURETY.
Seller held not entitled to recover against sureties contracting to assume buyer's prior indebtedness as shown by seller's books, where books carried alleged account in form of entries consisting only of dates and figures and letter "M," especially in absence of invoice numbers and of testimony that letter "M" was well understood as meaning merchandise.
APPEAL from the circuit court of Yalobusha county; HON. JOHN M. KUYKENDALL, Judge.
Kermit R. Cofer, of Water Valley, for appellant.
Appellant maintains that the honorable circuit court erred in sustaining objections made by counsel for surety defendants to the ledger sheets, order sheets, and invoices sought to be introduced by plaintiff.
This is a suit on a guaranty bond and not on an open account.
W.T. Raleigh Co. v. Fortenberry, 138 Miss. 410, 103 So. 227; J.R. Watkins Medical Co. v. McCall, 133 N.W. 966; Gordon et al. v. W.T. Raleigh Co., 245 P. 825.
Had this suit been on an open account, appellees' objections to the various documents sought to be introduced might have been properly sustained, but the Fortenberry case cited above definitely eliminated any chance of regarding this as a suit on open account.
The ledger sheets are admissible as they are.
Morgan v. King, 128 Miss. 401, 91 So. 30.
Regardless of whether the books were kept to appellees' liking, they were bound by the entries made therein. By the execution of the contract being sued on, they not only agreed to pay such sum as Gibson might on the 2d day of January, 1930, be owing, but placed their stamp of approval on the method of keeping books by appellant, and adopted those books as the proper source from which to ascertain the amount of indebtedness.
W.T. Raleigh Co. v. Deavors et al., 209 Ala. 127, 95 So. 459; W.T. Raleigh Co. v. Langeland, 261 P. 93.
The appellees, having adopted as the authoritative source of their information regarding the status of Gibson's account with appellant, now must stand upon the books and the amount shown to be due by those books.
The order sheets and invoices should have been admitted.
22 C.J., page 1182; W.T. Raleigh Co. v. Deavors, 95 So. 459, 209 Ala. 127.
The honorable circuit court erred in sustaining the motion of defendants, appellees here, to exclude the evidence offered for and on behalf of the plaintiff and instruct the jury to find for the defendants.
Morgan v. King, 128 Miss. 401, 91 So. 30; Duffy v. Kilroe, 76 So. 681; Raleigh v. Fortenberry, 138 Miss. 410, 103 So. 227; 25 R.C.L., page 649, sec. 280; J.R. Watkins Medical Co. v. McCall, 133 N.W. 966.
R.F. Kimmons, of Water Valley, for appellees.
It appears that no liability attaches for any indebtedness due from Gibson to appellant except "as shown by seller's books," and unless the items claimed are shown on the books of the seller this judgment should be affirmed.
It clearly appears from the evidence in this case that the only indebtedness incurred under the contract sued on by Earl A. Gibson, the principal, after the second day of January, 1930, has been paid in full, and the only claim the appellant has is an indebtedness incurred prior to the execution of the contract relied on by the appellant, and the only liability of the appellees, if any at all, is as sureties. Therefore being an effort to force the appellees "to answer for the debt or default or miscarriage of another person," no liability attaches to them unless "the promise or agreement . . . or some memorandum or note thereof was in writing and signed by them." (Code 1930, sec. 3343.) We insist that no such writing exists and this action must fail.
It is true as has been held by this court in a number of cases that the promise or agreement memorandum or note may consist of different kinds of writing, but it is also held that the terms of the contract must be expressed with certainty so that the contract between the parties may be clearly understood from the contract itself or some other writing to which it refers without resorting to parol evidence.
Waul v. Kirkham, 27 Miss. 823, 828; 1 Sug. Vend. 94; Smith v. Arnold, 5 Mason, 416; Gulfport Cotton Oil Co. v. Reneau, 94 Miss. 904; Rector Provision Co. v. Sauer, 69 Miss. 235; Taylor v. Sayle, 163 Miss. 822; Turnpike Co. v. Gooch, 113 Miss. 50; Fisher v. Kuhn, 54 Miss. 480.
Question naturally arises what do you mean by books? Mr. Webster says "a book is a collection of sheets of paper of similar material blank, written or printed, bound together; a volume or collection of sheets in which accounts are kept."
1 Words and Phrases, first series, pages 477 and 839; Turbeville v. State, 56 Miss. 793; Merchants Union Ins. Co. v. Johnson, 135 Miss. 311; Finch Co. v. Brewer, 133 Miss. 9.
In this particular case the effort is made to supplement the books of the company by showing the original orders given by Gibson.
We must remember that there are two things in the contract which are required. That is to say the sureties in this case agreed to stand for "goods, wares and merchandise" as shown by seller's books, and if the books do not show what was sold them under the statute of frauds there was no other evidence available to appellant.
Another bar to a recovery in this suit is the fact that a judgment was taken against Gibson, the principal, at a former term of the court, and we contend that this operated as a discontinuance of the suits against the sureties.
Appellant is a manufacturer and seller of proprietary medicines, extracts, and the like. One Gibson was a local retail dealer for appellant, and appellees were the accommodation sureties on a contract of suretyship executed unto appellant in behalf of said local retail dealer, in which contract the appellant is referred to as the seller, and the local retail dealer as the buyer. The dealer or buyer failed to pay a balance said to be due by him to appellant, and suit was instituted against the buyer and the sureties. The proof showed that payment had been made for all purchases subsequent to the execution of the contract of suretyship, and the question now requiring review is in respect to a balance of indebtedness claimed as having been incurred prior to the date of the execution of the said contract. In that respect the contract provided as follows: "And we also specifically promise and agree to assume and pay any and all prior indebtedness that may be due and owing said seller on the date of the acceptance of this contract, as shown by Seller's Books, for any and all goods, wares and merchandise previously sold to said buyer under and by virtue of any and all previous contracts or agreements."
A gratuitous surety is a favorite of the law and the contract must be strictly construed to impose upon the surety only the burdens clearly within the terms of the contract, so that it cannot be extended by implication, presumption, or construction. 50 C.J., pp. 78, 79; 21 R.C.L., pp. 975, 976. The contract of suretyship in this case has three essential features: It is to pay (1) the prior indebtedness of the dealer (2) for any and all goods previously sold to said dealer, and the two foregoing features must be (3) shown by the seller's books. The contract made the seller's books the evidence upon which the liability was to be shown. The contract cannot be extended by construction so as to show the liability, or either of the two required elements of that liability, by any other means than the seller's books. The books must themselves furnish the information required with reasonable certainty without the aid of parol testimony or loose-leaf memoranda kept otherwise than in and as a part of the books themselves. The contract refers, of course, to account books, and an account book is defined in its simplest terms as a volume bound or sewed together in which accounts are regularly kept, and as said in Bookout v. Shannon, 59 Miss. 378, 384, it must be a book of accounts and not a collection of loose and indeterminate memoranda; and although the term may now include the modern book of detachable leaves, these leaves must be of such appropriate uniformity of material as to constitute in a reasonable sense the leaves of the account book in which they are contained and kept.
The books of account introduced by the seller carried the alleged account in this case in the following form of entries:
"1928 Nov. 19 Mont. 208.66 21 Mont. 50.00 Dec 1 Mont. 22.07 12 Mont. 31.82 19 Mont. 41.49," and so on.
Of such an account this court said in Finck Co. v. Brewer, 133 Miss. 9, 14, 96 So. 402, 403: "We cannot tell from it the character of goods purchased. It is really but a string of figures, from which the defendants cannot tell for what they are charged." See, also, 22 C.J., p. 872, sec. 1049.
It may be that if it were shown by the testimony that the letter M as used in these books is well known and understood in the particular trade as meaning merchandise, and if in addition there were set opposite to each such item an entry upon the book giving the invoice or order number covering that item, so as thus by reference to make the particular invoice or order a fixed and permanent part of the book entry, we might or might not hold that the orders and invoices, which the appellant attempted to use in this case supplementary to the books, would be admissible. But there is no such testimony and no such entries on the books. So far as the so-called book entries are concerned, and so far as they themselves show, the items may have been for money advanced to the buyer, or, if goods, may have been intoxicating liquors or some other contraband; and as we have already noted the liability of an accommodation surety may not be extended by presumptions.
Affirmed.