Sopris v. Continental Manufacturing Corp.

ROTH, J., pro tem. Respondent’s assignor The Faultless Rubber Company, hereinafter referred to as company, sold brushes over a period of time to defendant Continental Manufacturing Corporation, hereinafter referred to as defendant, but because of the credit standing of the latter, business was done on a c. o. d. basis or on the strength of guaranties executed by defendant and appellant Lindsay Gillis, who was one of the directors of the defendant.

On April, 26, 1930, appellant Gillis executed a guaranty in words and figures as follows, to wit:

“Los Angeles, California, April 26th, 1930.

“Faultless Rubber Co., Ashland, Ohio.

“Gentlemen: I will personally guaranty payment of bill for fifty thousand brushes to be made by your Company as ordered by Mr. E. Thoralson for Continental Manufacturing Corporation, Ltd. (of Los Angeles, California). Payment therefor is to be made thirty days after completion of said fifty thousand brushes.

“Tours very truly,

“Lindsay Gillis.”

Within approximately three weeks thereafter, company and defendant executed a written contract for fifty thousand brushes, which contract set forth the price, terms of payment, time and place of delivery and other provisions. As to the terms of payment, said contract provided: “The above quotations are based upon terms 1% 30 days net 60, f. o. b. Ashland, Ohio. Until such time as you can establish credit [418]acceptable to our Credit Department, all orders are to be guaranteed by Mr. Lindsay G-illis, or some other financially responsible party acceptable to us. . . . ”

Appellant asserts that the terms of the contract above excerpted constituted a material alteration of his guaranty, and that he is exonerated thereby, citing Nissen v. Ehrenpfort, 42 Cal. App. 593 [183 Pac. 956]; Driscoll v. Winters, 122 Cal. 65 [54 Pac. 387]. Neither of these cases is applicable here. In the Nissen case, a specific promissory note was guaranteed and in the Driscoll case a specific contract was guaranteed, the terms of which were thereafter altered, without the guarantor’s knowledge or consent in either ease and to the detriment of the guarantor. In the case at bar, the appellant did not guarantee the specific contract between the company and defendant. Appellant executed a separate blanket guaranty to cover future purchases, wherein he said that he could be looked to for payment of brushes sold to the defendant to the number of fifty thousand on three conditions: One, that they be manufactured by the company; two, that they be ordered by Thoralson for the defendant, ^nd three, that he be not called upon to pay until thirty days after completion of the order for fifty thousand brushes. There is no contention that the brushes were not manufactured by the company, or that they were not ordered by Thoralson, but appellant does insist that the time of payment was changed.