ARR.] PERIMAN V. ROGERS ; 565 PERIMr1N V. BOdERS. • 4-3915 Opinion delivered June 12, 1933. • GUARANTY—SPECIAL GUARANTY.—A guaranty to pay damages to the lessors of certain preperty resulting from nonpayment of • rent, held special, and not general, being addressed particularly to the lessors. . • : ' -• • -. • Appeal from . Pope Cirenit • Court ; . Prid4y, Judge ; affirmed. - -
566 -PERIMAN V. ROGERS. ---[187 Robert • Bailey,. for apPellant. Ward (f Caudle and R. F. Smith, for appellee. SMITH, J.— J. G. Butler & Sons- executed to J. G. Rogers a written lease of a filling station in the city of Russellville for the term of five years, for a rental of $6,000, to be paid in monthly installments -of $100 each. The date of the contract is August17, 1925.: There was executed On the same day in connection with ihis contradt a guaranty which reads as follows: "We, the undersigned, by these presents bind our selves to pay any damages lessor§ may sustain during the first five year period of this lease resulting to lessors by reason of the failure of lessee to comply with its provision's in the payment of the rent stipulated therein. Witness our hands this the 17th day of August, 1925. "J. A. Rankin, "Jerome Wright, • "Hedge McClanahan." Rogers becaine ill after occupying the premises for some months and went to a hospital. The leased prop, erty was taken pOSsession of by one Ladd, who was in possession when the leased property Was sold by the lessors to C. W. Hays . and John H. Periman. -The testimony is in conflict as to the authority under which Ladd took possession, whether as tenant of Butler & Sons or as tenant of RogerS. Ladd defaulted in the payMent of rent, and Hays and Perlman brought suit against Rogers and his guarantors to recoVei the arrears of rent. Rogers and Rankin filed ' no answer, and judgment for the want of an answer was taken against them. Answer was filed by McClanahan and the:administratrix of Wright, who • had died, the cause having been revived against Wright in the name of his administratrix. Upon the final submission of the Muse against McClanahan and the admin-istratrix of Wright's estate, judgment was rendered in their favor by the court sitting, by consent of parties, as a jury, and from that judgment is this appeal. The guaranty here sued on is, in our opinion, special, and not general, and inured . to the benefit of the lessors, and to no other person. Its obligation is "to pay
ARK.] RERIMAN V: ROGERS. 567 any dainages leSsors may sustain,-", and ,; d6es iitrunto their o heirs'ornssignsi t! ( ,: 1 At,§ 52 of Stearns ori Suretyship, (3d:e1);:page 64; it is said: ` . `A guaranty,is Specialwhen 'it is' addressed-t6 a :particular person; firm; .or corporation,- and; when So addressed, only the proMisee named in the instrument.ad-quires any rights under it." Numerous cases_ are cited in. The note t6 the text: quoted which support' the. author 's statement of the law. •; - :; • . s At § 16 of the chapter On'GuarantY in 28 C:U.ipage 897, it is 'said: "A special gnarantyis 'one whiCh Addressed 'to a particular 'person Whe alone can 'take- advantage Of it; and to whotn only the guarantor can be held resp6nsible;.it nslially, but not necessarily;' Contern-plate§ a trust or• reposes .. a l'cOrifidenee in'the Orson to whom it is addressed:" • ' See also Brandt, SnretYship :& G-uaranty, V61. 1 (3d '§ 133, Page 282; Childs; Suretyship',& Guaranty; page 258 ;*PingreY on - Suretyship & GuarantY, (2d. ed.') § 340, page 350: , • Ont case of Kiltian AAley, 24 Ark. '6 1 1 , 'Cited as holding to the contrarY, , bnt we think thi's iS not ,its effect. The Writing there sued upon, referred to in:the oPinion as "a writing abligatorY,"' whS 'evidently a negotiable promissory note. The . inStinineriti'WaS; oke-: cuted by W. B. EaSley to the order of J..o. A shleY, and assigned by the latter to J. B. KeattS, ''Who assigned to Killian, the plaintiff. It was indorsed in blank before assignment by W. E. Ashley. Suit was brought: against'J. 0:Ashley as :iiidorseriand W.;E. 'Ash-ley as guarantor. The opinion recites that "AY E. Ashley is declared against as guarant6r ; iiid6i1Sethent was made in blank; without date, it :is not certain iwhether.le,should haVe been' declared against 'assecu'rity guarantor," and4t was there also said that.:''.'"By indorSinehe iebli-gation in blank, he (W. E. AshleY r),';'gie. t6:06.3 -ija,Yee or assignee an implied power,,t6Write:„ah,06:.;itn'theL)noSt absolute iterms of guaranty:t!,...N1 T hat, these„terms of guaranty were do not appear, but the opinion,does-;state
that: "If William E. Ashley had desired to limit or qualify the terms of his guaranty, he should have done so when he made the indorsement ; but when he sent forth the instrument with his name upon it, he is held to have given his implied consent to he bound by such , terms as the holder of the 'obligation might fix. upon him, in his character as guarantor." • . It was there contended that, although W. E. ,Ashley was liable as guarantor to the payee named, the contract of guaranty did not pass by the assignment of the writing obligatory to the plaintiff for lack of privity between those parties, and that consequently the. plaintiff had no right of action against the indorsing guarantor. The court said that, while there were authorities to that effect, tbere were otber and later .decisions "which hold differently upon reason and authority, whieh accord with the rights of parties, holders of negotiable paper," and that : "It was evidently the. ifitention of the Legislature to facilitate their cireulation„ as a speCies 6f exchange, by vesting in the assignee the same interest which the assignor had." In other words, one who indorSed a negotiable promissory note in blank was liable upon such indorsement to any one acquiring title to the paper. The facts here recited make plain the distinction between that and the instant case. The judgment of the court below is correct, and it is therefore affirmed. -
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.