Ajax Rubber Co. v. Gam — 30 Del. 479

Majority

p. 479

Ajax Rubber Company, Inc., a corporation of the state of Delaware, v. Emma S. Gam.

Headnote

Guaranty—Notice to Guarantor of Demand Upon and Default by Principal Debtor.

In an action by seller against defendant guarantor, on a continuing guaranty for payment of future credits with notice of extensions of payment waived, notice of demand upon and default by the principal debtor of the sum demanded is sufficient.

(November 17, 1919.)

Boyce and Rice, J. J., sitting.

Herbert H. Ward, Jr. (of Ward, Gray and Neary), for plaintiff.

Harry Emmons for defendant.

Superior Court for New Castle County,

November Term, 1919.

p. 480

Summons Case, No. 74,

November Term, 1918.

Action by the Ajax Rubber Company, Incorporated, against Emma S. Gam on a written guaranty. On demurrer to defendant’s ninth plea.

Demurrer sustained.

Same case on demurrer to declaration, ante, 105 Atl. 834 .

The ninth plea demurred to is as follows:

“Actio non: Because this defendant saith that notice was not given to her by said plaintiff within a reasonable time after the last sale of goods had been made by it to the said A. B. Rothacker Rubber Company, Incorporated, under said guaranty, of the total amount then due said plaintiff from said A. B. Rothacker Rubber Company, Incorporated, for the goods purchased by it from the said plaintiff, which said notice the said plaintiff was bound in law to give in order to hold this defendant responsible therefor under said guaranty. And this,” etc.

This is an action for the recovery of the price of goods sold by the plaintiff to A. B. Rothacker Rubber Company, Incorporated, under a written continuing guaranty of the defendant of prompt payment of all purchases theretofore made and that might thereafter be made by the principal debtor until receipt of notice by the plaintiff from the defendant guarantor that the guaranty was terminated. And notice of any extensions of payment was expressly waived.

On demurrer to the declaration in this case, it was held that it is necessary to aver notice of the acceptance of the guaranty for future credits before there can be a recovery against the guarantor (ante, 105 Atl. 834 .) The declaration was subsequently amended accordingly. It is also averred therein, in substance, that the plaintiff did, on sundry dates, between the first day of April, A. D. 1917, and the second day of October, A. D. 1917, sell deliver to A. B. Rothacker Rubber Company, Incorporated, on credit, certain goods, at reasonable prices agreed upon, amounting to the sum alleged; and also notice by the plaintiff to the defendant guarantor, on the sixth day of October, A. D. 1917, of demand upon and default by the principal debtor of the sum demanded is averred. The court is of the opinion that these averments are sufficient.

The demurrer is sustained.