concurring specially. We concur in the judgment, but not in what is said as to the notes, or in the idea that they and the original contracts, called agency contracts, alone show a right to recover against the defendant. These contracts carefully and distinctly negatived any idea of a purchase of the fertilizers by the defendant. They declared him to be an agent, and that the fertilizers were to be consigned to him for sale for the account of the Armour Fertilizer Works. He was to take cash or notes for all fertilizers sold by him, and turn over the same to the plaintiff on or before May 1, 1910 (using the contract of 1910 as typical of all of them). All notes were to be payable to the plaintiff’s order, and to be drawn to mature “not later than the maturity date of your guaranty note,” which was to be given. It was provided that “You expressly guarantee prompt payment of all notes taken in settlement for time sales made by you; and as evidence of your guarantee that we shall receive full and prompt payment thereof, and for all of said consigned goods sold by you for us upon time terms as evidenced by said notes or otherwise, you agree to execute and deliver to us on May 1, 1910, next, or sooner if required, your negotiable promissory note or notes, upon our forms, for all fertilizers delivered hereunder and not settled *393for in cash at the time of the execution and delivery of said note or notes.” The defendant was to be paid a commission. No fertilizers were to be used or taken by the defendant on his own account, “unless by special written permission from us.” This contract was dated January 14, 1910.
It scorns clear that when the petition set out.such a contract, and a note dated May 1, 1910, and given by the defendant in pursuance thereof, it showed on its face a case of agency, with a guaranty of prompt payment of notes of the purchasers of the fertilizers, and the giving of a note by the defendant as a part of, or evidence of, such guaranty. When the plaintiff set out in his petition the contract and note, this would not alone suffice to show liability on the part of the guarantor. Under such a guaranty of payment, it may not be necessary to allege and prove inability of the purchasers of the fertilizers to pay their notes, but at least failure of prompt payment would be a necessary part of the allegation and proof. But when long after the dates stated as those of the maturity of such notes, and presumably after 'the notes of the purchasers were past due (as they were not to be made due later than'the guaranty notes), the parties came together and entered into a written contract in which they agreed that the defendant was “owing” to the plaintiff certain stated sums on the guaranty notes respectively, and made provision in regard to securing “this indebtedness,” and the petition had attached to it as exhibits not only the original contracts and guaranty notes, but also the last-mentioned contract, a case of indebtedness to the amounts so admitted was sufficiently set forth to withstand a demurrer general in character.