44 Wis. 49 | Wis. | 1878
Lead Opinion
Upon this appeal this court may review the decision of the court below overruling the demurrer of the appellant to the complaint of the respondent, such order having been duly excepted to by the appellant. This court held in this case, upon a former appeal, that, after final judgment, the only way of reviewing the correctness of the order overruling a demurrer was by an appeal from the judgment, and if an appeal were taken from the order after final j udgment was entered, such appeal must be dismissed. American Button-Hole, Overseaming and Sewing Machine Company v. Gurnee, 38 Wis., 533. See, also, Tronson v. Union Lumbering Company, id., 202.
The questions to be decided on this appeal are: 1. Does the complaint state a cause of action against the appellant? 2. If it does not state a cause of action against the appellant, and does state a cause of action against Reynolds, can the appellant, after having joined with his codefendant in a demurrer to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was properly overruled by the court below for the reason that the complaint states a cause of action against his codefendant — upon an appeal from the final judgment against both defendants, reverse the judgment as to himself because the complaint does not state a cause of action as to him as well as against his codefendant? In determining these questions, we hold that the complaint must be treated as an action to recover against both of the defendants, for a breach of the condition of the bond set forth in the complaint, and which was in fact executed by both of them. It would seem but reasonable and just to so hold in an action claiming a joint judgment against both defendants for the same sum of money, when it is clear that, unless the action be upon the bond set
After these allegations and claims in the complaint, and recitals in the judgment rendered, it is too late for the respondent to say that the complaint and judgment, so far as it affects the defendant Neynolds, may be considered a judgment upon the claim of the respondent either upon the notes or for the purchase price of the goods delivered under the contract.
Does the complaint state a cause of action against the appellant? We think not. First, upon the ground that the complaint clearly shows that the respondent, contrary to the agreement made with the defendant Neynolds, by the terms of which he was to settle monthly, and either pay in cash for the goods sold to him or give his note for the amount unpaid at four months, took notes due in six months, and there is no allegation that this was done with the knowledge or consent of the appellant, nor is it alleged that there was any agreement between the respondent and the defendant Neynolds,
’ It is also argued that there is no evidence that the notes given at six months were not given as collateral to the debt due the respondent, and did not therefore extend the time of payment. As stated above, there is no allegation in the complaint that other notes were given due in four months, for which these six months’ notes were given as collateral, nor that they were given as collateral security for the payment of like sums due in four months, for which no notes at four months were given. It is fairly to be inferred from the allegations of the complaint, that these notes, which both bear date the first of the month, were given on monthly settlements, instead of the notes which the contract called for at four months. If they were so given, then we think there can be no doubt that, under the provisions of this contract, no action could be brought for the value of the goods sold, and which were unpaid for at the date of the settlement, and for which value these notes were given, until the notes became due. The contract provides that Reynolds shall make monthly settlements for goods purchased, and pay with cash or notes at four months. Now if he settles, and gives, and the respondent accepts, a' note for six instead of four months, then the claim of the respondent for the sum due at the time of settlement is fully adjusted, and the time for its payment fixed by the note given. If A. has a current account against B., and they meet and settle the account, and B. gives A. his note
The appellant argues with great force, that, construing the contract and bond strictly against the respondent, in favor of the surety, there is no breach of the bond shown in the complaint. It will he seen by an examination of the complaint, that it is nowhere alleged that Reynolds did not make monthly settlements as provided for in the contract, nor does it allege any other breach of the contract, unless a failure to pay the notes taken upon the settlements is a breach. Is the failure to pay the notes giveu on settlement a breach of the bond? The condition of the bond is, in brief, that Reynolds shall perform, in all respects, bis contract upon which the bond is in
Some of the provisions in the third clause of the contract strengthen this view of the case. It is there provided how the contract may be ended by the parties. It may be ended by mutual consent, or by notice of either party to the other; and the respondent may put an end to it if it appears that Reynolds is not likely to meet his obligations at maturity. “ Obligations ” undoubtedly refers to his notes given. This lessens the force of the argument, that if Reynolds gave his notes he could get a large amount of goods during the first five months, for which the bond of the respondent would be no security. If, after the first settlement, it should appear that Reynolds was not likely to succeed in the business, the respondent had the power to put an end to the contract, and refuse to furnish more goods. We are clearly of the opinion that the construction above given to the first clause of the contract is strictly according to the letter of it, and does not
Interpreting the contract as above indicated, no breach of the contract is shown in the complaint as against either of the defendants, and the demurrer should have been sustained as to both.
Admitting, however, that this interpretation of the contract is wrong, especially as against Reynolds, and that by its terms he not only promised to give his notes on settlement, but to pay them at maturity, and that there is therefore a breach of the condition of the bond as to him shown in the complaint, is the appellant estopped, on this appeal from the final judgment, from alleging that no cause of action is stated in the complaint against him, because he united in the demurrer to the complaint with Reynolds, stating as one ground of demurrer that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was properly
It has been held in this court repeatedly, that, even after an appearance and answer, and without talcing any exception, if the complaint does not state a cause of action against the defendant, or against any one of two or more defendants, on an appeal to this court exception for that cause may -be taken for the first time, and the judgment will be reversed as to those parties against whom the complaint does not state a cause of action. K- v. H-, 20 Wis., 239; Smith v. Weage, 21 id., 410; S. C., 22 id., 438. We.hold that one of two or more defendants, who has appeared in the court below and joins with other defendants in a demurrer to the complaint because it does not state a cause of action against all the defendants, and whose demurrer is overruled because the complaint does in fact state a cause of action against some defendant or defendants other than himself, is not estopped, upon an 'appeal ' from a final judgment against him, from alleging as error that the complaint does not state a cause of action against him. The ruling upon his first demurrer was rightly made, because it was too broad; but it is in no sense res ad/juMcata that the complaint states a cause of action against him. The first ruling was simply that a cause of action was stated against some one or more of the defendants, not that it stated a cause of action against all of them. The party demurring in that case admits, for the purpose of the trial of the issue of law raised, that the allegations of the complaint are true, and, according to the rule of law applied by the courts to such a joint demurrer, it must be overruled if the facts state a cause of action against any one of .a dozen defendants, if there be so many. The .party so demurring does not ask the court to pass upon the question as
“ It is an admitted principle, that a demurrer admits all the facts well pleaded, and demands the judgment of the law upon those facts. And when the judgment is pronounced, it must be conclusive upon the parties, and as effectually determine the litigation as if judgment had been rendered on a verdict. But there is this difference to be observed between judgments
The judgment must be reversed as to the appellant.
Concurrence Opinion
I concur in this judgment, on the ground that the extension of credit to Reynolds, from four to six months, released the obligation of his surety, the appellant. But I cannot assent to the position that the mere giving of the four months’ notes by Reynolds would be a full performance of the contract on his part, or would discharge the appellant from liability on his bond for Reynolds’ performance of it.
The contract provides that Reynolds should settle monthly, with cash or four months’ note, and I have no doubt that notes so given in settlement would operate by way of present payment. But notes given under the contract are Reynolds’
And the bond being for Reynolds’ performance of his contract in all respects, I cannot but think that the appellant would be liable for the payment of four months’ notes given by Reynolds under the contract,
"Whether the demurrer were joint or several, I think it -was well taken. The complaint discloses no cause of action, even against Reynolds. It shows no breach of the contract. The enlargement of Reynolds’ credit not only operated to discharge his surety, the appellant, it also operated to waive, as against Reynolds, the provision of the contract to give four months’ notes. The notes mentioned in the complaint were not given in pursuance of the contract. They were given and takeii outside of the contract, waiving the terms of the contract!. And, so far as the complaint discloses, the contract was performed or waived. Reynolds may remain liable on his notes, but, even as to him, the contract does not appear to be broken, and
With this view, I regard the discussion of the effect of the demurrer, in the opinion of the court, as irrelevant to the case, and I therefore do not feel called on to express either con • currence in it or dissent from it.
By the Court.— The judgment of the circuit court is reversed as to the appellant.
A motion for a rehearing was denied.