Klosterman v. United Electric & Power Co.

Page, J., delivered the opinion of the Court. This is an action of assumpsit, brought by the appellees against the appellant for the alleged failure of the former to ³¹ pay the amount due under its agreement to furnish electric current to the premises of the National Coliseum Company. At the conclusion of the testimony the Court granted one instruction for the appellees and rejected the three asked for by the appellant; and as to the correctness of this action of the Court, arise all the questions that are presented by this record. The evidence shows, that on the 5th of May, 1902, the National Coliseum Company made application, in writing, to the appellee, to furnish electric current 'for sixty-one arc lamps, which the appellant agreed to use for a term of twenty weeks, beginning on or about 1st June, 1902, “or when said current is subsequently supplied,” and to pay therefor at the office of the appellee on the Monday of each succeeding week at 35 cents per lamp, said lamps to burn from dusk to midnight; no lamps to burn unless notice in writing is given at 30 S. Eutaw street by or before 6 o’clock P. M., that the service is required that night. “The subscribers guarantee to pay not less than $470 during the season, whether lamps burn or not.” On the said application were printed certain “terms and conditions,” and it was agreed that these, “so far as they were not inconsistent” with the terms of the application, should be considered as part of the agreement; the whole, that is the application and the terms and conditions printed thereon, to “form a binding contract between the applicant and the company when accepted in writing by the secretary” of the appellees.

This application signed by the National Coliseum Company was accepted in writing by the secretary of the appellee. Appended to the application were these words, viz: “I do hereby guarantee the payment of all bills payable by this contract—(signed by) C. Ross Klosterman.” Mr. Symington, the secretary of the appellee testifies that he did not accept the application or sign it until after Klosterman had personally guaranteed it and that he refused to sign it until it was so guaranteed. On the other hand Mr. Klosterman testified that the application was signed by the secretary-before he had “guaranteed it.” Before the Act of 1900, ch. ³² 362, it was well settled that in the case of a “collateral promise to answer for the debt or default of another, it is necessary that a consideration as well as the promise should appear from the writing.” But, as was stated in the case of Ordeman v. Lawson & Bro., 49 Md. 155 , “It is not necessary that the consideration should be stated in express terms, but it is sufficient if it may be collected or implied with certainty from the instrument itself. It frequently occurs that a guaranty is written upon the instrument it professes to guarantee, as when a third party writes upon a promissory note at the same time that the note itself is. executed and delivered to the payee, a guaranty in these terms “I hereby guarantee the within or above note,” or “I hereby guarantee payment of the within or above note,” and signs it, thus making but one contract, and in such cases the consideration which upholds the note, will support the guaranty and the latter will be good.” Supra.

In the same case it was held that when there is no date affixed to the guaranty, so that it is left uncertain whether it may not have been written after the instrument guaranteed was executed, delivered and received as a complete contract, parol proof may be admitted to show “identity of time,” that is to say that the guaranty was written and signed, at the time of the execution and delivery of the note.” The guaranty in this case refers clearly to the contract made by the Electric Light Company with the National Coliseum Company. It guarantees the “payment of all bills payable by this contract. ” It bears no date, but there was parol evidence to the effect substantially, that the Electric Company did not sign or accept the contract until it was guaranteed by Klosterman; and whether it was in fact signed at that time was a matter proper to be submitted to the jury. There was no error therefore in granting the appellee’s prayer. But it was contended that by a proper construction of the terms of the guaranty, there could be no recovery in' this case because the contract itself offered in evidence is void by reason of