{ "id": 1462403, "name": "The W. T. Rawleigh Company v. Moore", "name_abbreviation": "W. T. Rawleigh Co. v. Moore", "decision_date": "1938-11-14", "docket_number": "4-5235", "first_page": "1148", "last_page": "1153", "citations": [ { "type": "official", "cite": "196 Ark. 1148" }, { "type": "parallel", "cite": "121 S.W.2d 106" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "48 L. R. A., N. S., 198", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "141 N. W. 64", "category": "reporters:state_regional", "reporter": "N.W.", "case_ids": [ 2548801 ], "opinion_index": 0, "case_paths": [ "/nd/25/0063-01" ] }, { "cite": "36 Iowa 270", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2301266 ], "opinion_index": 0, "case_paths": [ "/iowa/36/0270-01" ] }, { "cite": "15 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728080 ], "opinion_index": 0, "case_paths": [ "/ark/15/0132-01" ] }, { "cite": "233 S. W. 798", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "150 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1367899 ], "opinion_index": 0, "case_paths": [ "/ark/150/0038-01" ] }, { "cite": "99 S. W. 2d 254", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411201 ], "opinion_index": 0, "case_paths": [ "/ark/193/0332-01" ] } ], "analysis": { "cardinality": 533, "char_count": 8874, "ocr_confidence": 0.516, "pagerank": { "raw": 1.9734921547978335e-07, "percentile": 0.7396010346549162 }, "sha256": "04740ef1ab65726a3f3b129725182559591faf85bf4d29cd48fc5a5722453b8b", "simhash": "1:68a458a23829d2a3", "word_count": 1572 }, "last_updated": "2023-07-14T16:57:18.765663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The W. T. Rawleigh Company v. Moore." ], "opinions": [ { "text": "Smith, J.\nOn May 4, 1934, Earl James entered into a contract with appellant for the purchase of certain goods, wares and merchandise, and on the same day appellee and .two others entered into a written contract whereby they jointly and severally agreed to pay for any and all goods purchased'from appellant by James for which James did not pay.' The contract provided for the merchandise to be delivered f.o.b. Memphis, Tenn. Pursuant to this contract goods were sold and so delivered, upon which it is admitted a balance of $171.87 purchase money is now due. Demand for payment having been made upon and refused by James and his sureties, this suit was brought against all of them to enforce payment.\nAppellee defended upon the ground that as a surety he had given notice pursuant to the provisions of \u00a7\u00a7 10864 and 10865, Pope\u2019s Digest, requesting suit be brought, and that the failure to comply with this demand had exonerated him from liability. The sales contract and the surety contract are printed, and were executed on the same page of a single sheet of paper. The contract signed by the sureties provides that \u201c. \u2022 . . any notice in any way effecting the-rights of the seller must be delivered by registered mail to the seller at its office at Memphis, Tenn.\u201d\nAppellee testified that he wrote appellant the following letter:\n\u201cPocahontas, Arkansas,\n\u201cMay 25, 1935.\n\u201cThe W. T. Rawleigh Company,\n\u201cFreeport, Illinois.\n\u201cDear Sir:\n\u201cThis is to notify you that unless a suit is commenced forthwith against Earl James of this, Randolph county, Arkansas,- upon the indebtedness which you claim is due you under the surety bond which you took from James and which 1 signed as surety, I will deny liability under it. Mr. James is the principal debtor and unless you commence suit forthwith I will not be liable under our law in Arkansas. I understand that Mr. James is liable to leave the state soon.\n\u201cVery truly yours,\n\u201cJohn J. Moore.\u201d\nIt will be observed that this letter is addressed, not to Memphis, Tenn., but to Freeport, Illinois, which city is the home office of appellant company. Appellee testi-fled that this letter was placed in a properly addressed and stamped enveloped; but the testimony on appellant\u2019s part is that it was never received.\nAppellee had previously \u2014 on January 2, 1935 \u2014 written the following letter:\n\u201cThe W. T. Rawleigh Co.,\n\u201cFreeport, Ill.\n\u201cGrentlemen:\n\u201cIn regards to your letter of Dec. 31, 1934, with reference to the surety debt of Earl James, beg to state there must be a misunderstanding somewhere, as I spoke to this Earl James, personally, after your house in Memphis wrote and said he had failed to make a settlement in regards to his merchandise. He advised me that he had returned the unsold products and was waiting to hear from them. You kindly take this matter up with your Memphis house and let me know further. '\n\u201cAwaiting your reply, I am\n\u201cYours truly,\n\u201cJohn J. Moore.\u201d\nThis last copied letter shows that appellee was advised that the Memphis office had charge of this account.\nIn response to demands for payment appellee, on September 19, 1935, wrote the following letter:\n\u2018 \u2018 Gents\u2014\n\u201cReferring to letter on reverse side beg to state that I am willing as far as my part is concerned to make you a note for my part payable in three months. However owen to conditions & misfortunes that have overtaken me in the past five months I am not worth anything and you would have a hard time getting anything out of me, however I do not wish to beat you out of anything. There is four of us on the bond and to show you that I am honest if you will give me a chance I will raise my part which would be % of $150.00 in thirty days from today providing you will release me on the bal. as the other boys can raise their part or I think will if you will give them a chance. You will find-you can do more by not lawing us fellows and think each will pay when they can. I am willing to do Avhat I said and if you want to do that fix up the papers releasing my part and I Avill settle as stated.\n\u201cYours truly,\n\u201cJulm J. Moore.\u201d\nIt will be observed that this letter makes no reference to the letter of May'25th, and makes no contention that appellee had been exonerated from liability as surety through failure to comply with its direction in regard to bringing suit.\nThere is a presumption of fact \u2014 and not of law\u2014 that, where a letter, properly and sufficiently addressed, and properly stamped, is mailed, it was received by the addressee in due course of mail. But this presumption ceases to exist where the addressee denies having received the letter. In that case it becomes a question of fact whether the letter was written or received. The Travelers Ins. Co. v. Thompson, 193 Ark. 332, 99 S. W. 2d 254.\nAppellee\u2019s defense is predicated upon \u00a7 10864, Pope\u2019s Digest, which reads as follows: \u201cAny person bound as surety for another in any bond, bill or note, for the payment of money or the delivery of property, may, at any time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and other party liable.\u201d\nIt is true, as appellee contends, that this section does not require, service of this notice in the manner of serving notices provided by the Code (Glenn v. Union Bank & Trust Co., 150 Ark. 38, 233 S. W. 798), and that service by letter, actually written and received, is sufficient, although the general rule is stated to the contrary in \u00a7 296 of the chapter on Principal and Surety in 50 C. J., p. 181. But the notice must be given, and must \u201crequire the person having such right of action forthwith to commence suit against the principal debtor and other party liable.\u201d\nSimilar statutes are found in many \u2014 if not all \u2014 of the states, and the universal rule for their construction is that, inasmuch as they are in derogation of the common law, and operate to abrogate an otherwise valid contract, they must be strictly construed, and must be strictly complied with.\nIt was said in the early case of Cummins v. Garretson, 15 Ark. 132, that \u201cThe security has no reason to complain of hardship in being required to pursue the statute strictly. He may, as he could before its enactment, comply with this contract, and by paying the debt, take into his own hands the remedy against the principal;. . .\u201d\nOur later cases have not departed from this rule of strict construction.\nThe contract of suretyship, here sued on made the sureties jointly and severally liable. The letter did not direct that all persons liable be sued; it required that action only against the principal.\nIn the case of Harriman v. Egbert et al., 36 Iowa 270, the headnote reads as follows: \u201cA notice by a surety to the creditor to bring suit upon the obligation should demand that a suit be brought against all the parties, and not simply against the principal; otherwise, failure of the creditor to bring suit would not discharge the surety.\u201d\nMoreover, as has been said, the contract of surety-ship provided \u201cthat any notice in any way affecting the rights of the seller must be delivered by registered mail to the seller- at its office in Memphis, Tenn.\u201d Insomuch as the statute, above quoted, makes no provision for the manner of service of notice, we perceive no reason why the parties may -not contract on that subject and provide the place where and manner in which notice, statutory or otherwise, shall be' served. Here, the letter was not registered, and it was not addressed to Memphis, Tenn.\nThe case of W. T. Rawleigh Medical Co. v. Laursen et al., 25 N. Dak. 63, 141 N. W. 64, 48 L. R. A., N. S., 198, was a suit by the appellant here upon a contract, no doubt, similar to if not identical with the contract here sued on. In that case the Supreme Court of North Dakota said: \u201cThe rule, indeed is clearly laid down by Story in his work on Contracts (5th Ed.), \u00a7 1133, where he said: \u2018 The only notice to which the guarantor has a strict right is notice that his proposal of guaranty is accepted and will be acted upon, and this right may be waived by the form of the guaranty or by the manifest intention of the parties as implied thereby.\u2019 \u201d\nHere, the parties haye contracted, as we think they had a right to do, where and in what manner any notice affecting the rights of the seller should be served. We conclude, therefore, that the notice required by statute has not been given. No other defense is interposed. The accuracy of the account sued- on was expressly admitted.\nThe judgment must, therefore, be reversed, and as the case appears to have been fully developed, judgment will be rendered here for $171.87, the amount of the account, with interest.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Ingram & Moher and Cunningham <& Cunningham, for appellant.", "George H. Booth, for appellee." ], "corrections": "", "head_matter": "The W. T. Rawleigh Company v. Moore.\n4-5235\n121 S. W. 2d 106.\nOpinion delivered November 14, 1938.\nIngram & Moher and Cunningham <& Cunningham, for appellant.\nGeorge H. Booth, for appellee." }, "file_name": "1148-01", "first_page_order": 1166, "last_page_order": 1171 }