Rathbone, Sard & Co. v. Frost

Citations

• 9 Wash. 162
• 37 P. 298
• 1894 Wash. LEXIS 275

Syllabus

<p>FRAUD — PLEADING —EXTENSION OF GUARANTY.</p> <p>Although a pleading may not in direct terms allege fraud, yet, if the acts constituting the fraud are set forth, the pleading sufficiently alleges fraud to admit of proof thereunder.</p> <p>In an action upon a written contract by defendant guaranteeing payment of all bills of merchandise which plaintiff might thereafter sell a third person, to which the defendant sets up the defense that on a certain date he executed a contract of guaranty for goods already sold to such third person; that thereafter plaintiff sent him another form of guaranty, claiming it to be the form generally used, which he was desired to sign and return, representing that such new guaranty was simply for the purpose of carrying out the original agreement and contract signed by defendant; and that relying upon said representations, without paying any attention to the form inclosed, defendant signed the new agreement and forwarded it to plaintiff, the same being the instrument set forth in plaintiff’s complaint, evidence is admissible showing the receipt by defendant of a letter from plaintiff in regard to the substitution of another form of guaranty, in which it was alleged that “there is but little difference in the blanks, but we prefer to have our own regular forms,” and that the original contract, which had been lost or retained by plaintiff, limited defendant’s liability to the sum of $500 for a bill of merchandise sold, and that said indebtedness had been wholly paid.</p> <p>In such a case it is erroneous to refuse defendant’s request for a charge to the jury that plaintiff is not entitled to recover, if they find that the original contract limited defendant’s liability as guarantor to five hundred dollars and that the guaranty sued upon was obtained through the fraud and misrepresentation of plaintiff.</p>