[Wheeler v. Krohn, Fechheimer & Co.] Wheeler v. Krohn, Fechheimer & Co. Assumpsit. (Decided December 18, 1913. 64 South. 179.) 1. Guaranty; Contracts; Acceptance.-Where defendant signed a contract of guaranty which plaintiffs required before extending credit to defendant's son, and the contract was on a form furnished by plaintiffs, a formal acceptance by plaintiffs was not necessary. 2. Same; Liability; Accrual.-Where defendant had executed a contract of guaranty to cover all purchases made by his son, and the son made an order for goods some of which were already manufactured, and others to be made up specially, and the order was accepted and the manufactured goods shipped immediately, the order was indivisible and the acceptance created a binding contract for both classes of goods, and defendant could not escape liability on his guaranty because the son countermanded the special order and refused to receive the goods. 3. Same; Liability; Tender of Goods Purchased; Necessity.Where a purchaser of goods which were to be specially manufactured notified the seller shortly before the time fixed for shipment that he would under no circumstances accept them, and his guarantor similarly notified the seller, delivery of the goods by the seller, or tender of delivery was not necessary to charge the purchaser and his guarantor with the difference between the purchase price, and the price the goods brought when sold on their account. 4. Same; Evidence; Sufficiency.-The evidence examined and held sufficient to show that the sale was made in accordance with the terms of the guaranty. 5. Sunday; Contracts; Completion.-Where the order was given on Sunday, and was transmitted to the seller by mail and accepted on a week day, the contract was rot a Sunday contract, the minds of the parties not meeting until the acceptance of the order. APPEAL from Anniston City Court. Heard before Hon. THOMAS W. COLEMAN, JR. Assumpsit by Krohn, Fechheimer & Co. against John T. Wheeler, upon his contract of guaranty. Judgment for plaintiff and defendant appeals. Affirmed. BLACKWELL & AGEE, for appellant. To charge a guarantor it is necessary that he should be notified within a reasonable time of its acceptance, and that credit be rers. [Wheeler v. Krohn, Fechheimer & Co.] given within a reasonable time.-Lawson v. Town, 2 Ala. 373; Fay v. Hall, 25 Ala. 704; Walker v. Forbes. 25 Ala. 147; Davis S. M. v. Richards, 115 U. S. 524. Under these authorities count 7 was subject to the demurThe count is also defective for failure to show that there was a delivery of the goods, as delivery under the guaranty was necessary.-Manatee Bank v. Weatherly, 144 Ala. 655; 113 N. Y. Supp. 1010; 26 N. E. 1056. The court erred in sustaining demurrers to defendant's third plea.-Butler v. Lee, 11 Ala. 185; Strauss v. Lancelot, 27 South. 606. Under these authorities, it was a Sunday contract. It was not only necessary to set apart the goods, but also to deliver them to H. N. Wheeler in order to charge the guarantor, and the court therefore erred in sustaining demurrers to the 4th and 5th plea.-Authorities supra. The proof failed to show that the order of April 9, was ever accepted.-Manier v. Appling, 112 Ala. 663. WILLETT & WILLETT, for appellee. The guaranty is absolute in form, and so drawn as not to require notice of acceptance.-Newman v. Scarbrough, 40 South. 248; 105 Am. St. Rep. 496; 74 N. E. 139; 20 Cyc. 1404; 6 L. R. A. 639. Under the undisputed facts plaintiff should not be heard to deny an acceptance of the order.-58 Pac. 1112. There was sufficient consideration to support the guaranty.-11 Ill. 548; 77 Md. 162; 104 N. Y. 532; 134 N. C. 415. The contract was not a Sunday contract, as it was not accepted until a week day.Gould v. Cates Chair Co., 147 Ala. 629. PELHAM, J.-The claim asserted by appellees in their suit, as plaintiffs in the court below, is based on a written guaranty alleged to have been given to them by the appellant to secure the payment of goods sold [Wheeler v. Krohn, Fechheimer & Co.] by the appellees in the due course of business to H. N. Wheeler, the son of the appellant; appellees being wholesale merchants engaged in the manufacture and sale of shoes, and located at Cincinnati, Ohio, and H. N. Wheeler being a retail merchant doing business in Anniston, Alabama. The guaranty sued upon and set out in the pleadings is dated at Anniston, Ala., September 23, 1909, addressed to the appellees, signed by the appellant, and is in the following words and figures: "For a valuable consideration, the receipt whereof is hereby acknowledged, I hereby promise and guarantee to you the payment at 60 days' maturity, for any and all purchases from and after the above date made by or in the name of H. N. Wheeler, Anniston, Ala. Settlement by note, acceptance, or other written evidence of indebted. ness is allowed under this guaranty, and the payment of the same at maturity is guaranteed. Privilege of extension is hereby granted under this guaranty, without notice to me, for such time as may be agreed upon between you and said H. N. Wheeler, Anniston, Ala., and payment is guaranteed at the expiration of such extension or extensions; and I hereby waive any legal rights that may accrue to my benefit by reason of such extension. It is expressly agreed that this is to be a continuing guaranty, covering all future purchases of goods, until notice of revocation be given by me to you in writing. Notice of sale, delivery of goods, nonpayment at maturity, extensions, and indulgences is hereby waived." In the due course of business between the appellees and H. N. Wheeler, the latter gave to the traveling salesman of the former, in April, 1910, an order amounting to several hundred dollars for certain merchandise, consisting of shoes as described and specified in the order. Part of this order was, under its terms, to be shipped "at once," and part was for goods [Wheeler v. Krohn, Fechheimer & Co.] to be manufactured by appellees and shipped about September 1, 1910. Other orders passed between the parties, and one other is made the basis of a claim for recovery in plaintiff's complaint; but, as it is conceded that the damages allowed by the court trying the case without a jury, and the recovery of appellees, was only upon the order given in April, 1910, for goods to be manufactured and shipped on September 1, 1910, it will be unnecessary to consider as directly affecting the case any other order. The part of this order providing for shipment "at once" is not in controversy, as these goods were shipped, received, and paid for, leaving nothing in dispute, so far as that part of the order is concerned. It is only questions arising on, growing out of, and connected with that part of the April, 1910, order that under its terms was to be manufactured and shipped by appellees on September 1, 1910, amounting to $627.75, that are the real subjects of controversy so far as the consideration of this case on appeal is concerned. The order of April 8, 1910, was given by H. N. Wheeler at Birmingham, Ala. (where the parties had met by mutual agreement), to a traveling salesman of appellees, and forwarded by him to them at Cincinnati, Ohio. Appellees acknowledged receipt of the order by letter dated April 11, 1910, addressed to H. N. Wheeler, at Anniston, Ala., stating that the order would have prompt attention, and requesting him to notify them at once if the order was incorrect in any particular, as they would not accept any countermand of the order after the goods were cut. Subsequently, and after the "at once" part of the April order had been shipped by the appellees and accepted by H. N. Wheeler, on or about July 19, 1910, H. N. Wheeler wrote the appellees that he was winding up his affairs preparatory to going out of business, and undertook to cancel or countermand the April order [Wheeler v. Krohn, Fechheimer & Co.] given by him for goods to be shipped September 1, 1910. The appellant, the father of H. N. Wheeler, on August 4, 1910, also wrote the appellees, to the effect that he withdrew any further responsibility on his guaranty to appellees for purchases made by his son. There is some conflict in the evidence set out in the bill of exceptions as to what replies were made by appellees and received by the Wheelers to the letters containing these notifications, but it is without dispute that the appellees at all times denied any right of cancellation to exist, and uniformly insisted that John T. Wheeler was bound on his guaranty to them for the goods to be shipped on September 1, 1910, on the order given in April, 1910. It was shown that the goods to be manufactured by appellees on the April order had been cut in the preparation for manufacture by May 17, 1910, before any attempted cancellation of the order was made, and that on August 15, 1910, they were all manufactured, or "made up" and ready for shipment, and that part of the order had been finished as early as June 24, 1910. The appellees, after notifying H. N. Wheeler and John T. Wheeler that the goods were ready for shipment under the terms of the contract of purchase, and that unless shipping directions or other directions for disposition of the goods were received they would sell the goods at the best prices obtainable and hold John T. Wheeler on his guaranty for the difference, adopted this course (the Wheelers having denied any liability on account of the order), and seek in this suit to make the appellant, John T. Wheeler, liable on his guaranty for the difference be tween what the goods brought on this sale and the original purchase price under the terms of the order of April, 1910. The real, substantial point at issue on the trial of the case was whether or not the appellant, John T. Wheeler, was liable to the appellees on his guaranty |