78 Minn. 57 | Minn. | 1899
Lead Opinion
A general demurrer to the original complaint in this action was overruled in the district court, and on appeal the order was affirmed. 71 Minn. 331, 73 N. W. 1086. Subsequently plaintiff amended his complaint so as to bring in all creditors whose claims had not been allowed, that their rights might be equitably adjusted. A trial was had, and the court made findings of fact, with conclusions of law; judgment being ordered in favor of plaintiff and the respondents Webb and the Crane Company, and also in favor of other creditors, for a certain percentage of the amount of each of their claims. This appeal is from the judgment thereafter entered.
There are two points argued by counsel for appellant trust company which are common to all of the respondents, and which should1 be first disposed of:
1. The trial court excluded and rejected certain written and oral
The effect of this class of evidence, if received and relied upon by the court when making its findings, would have been to cut down and limit the liability of the trust company to the debts expressly mentioned in the list or schedule before mentioned as having been submitted by Mr. Mendenhall when he proposed to the company that it become trustee, but in no manner referred to or made a part of the contract, in which it was stipulated that the indebtedness to be taken care of was “all of the outstanding indebtedness of said second parties,” not exceeding $130,000. Not the debts or liabilities listed and scheduled at some prior time, and in which list no mention was made of the liability incurred when the Mendenhalls, either prior to the delivery, and for the purpose of giving additional credit thereto, or as indorsers, — and it is not material which,— placed their names on the back of the James note, but all of the outstanding indebtedness. The phrase “all indebtedness” included; all pecuniary liabilities of each and both of the debtors, present, or already incurred, but to mature in the future. “Indebtedness” is a word of large meaning, and is used to denote almost every kind of pecuniary obligation originating in contract. It must be held to j cover the debtor’s joint as well as his several liabilities, and also
To give any weight to the evidence in question would be to make a new contract for the parties; for, as was said when the case was here before, the covenant to pay is clearly and concisely expressed, —has no uncertainty in its meaning, — and the promise was for the equal and ratable benefit of all of the creditors. The character of conclusiveness is given to written instruments deliberately adopted by the parties as embodying their final agreements, and as to the terms, conditions, and limitations thereof the written contracts must speak for themselves. Nor will a party, under the guise of showing what the real consideration of a contract was, be permitted 'to cut down or vary the stipulations of his written covenant by proof of a parol agreement, either antecedent to or contemporaneous with the writing. Bruns v. Schreiber, 43 Minn. 468, 45 N. W. 861; Sayre v. Burdick, 47 Minn. 367, 50 N. W. 245; 2 Parsons, Cont. 680.
The attempt to show that, prior to the execution of the contract in which the trust company agreed to pay all of the indebtedness, it was the verbal understanding that only a part should be paid, was properly excluded by the court below. If the parties desired to limit the liability of the. trust company, either by confining such liability to the indebtedness mentioned in the list, or to their joint obligations, it would have been an easy matter to have so written the agreement. This was not done, and, if their actual meaning and intention are not set forth in that instrument, it is an unfortunate omission, for which there is no remedy under the pleadings in this action.
2. It is argued that the contract was ultra vires of the trust company, and for that reason there can be no recovery by either plaintiff or the intervenors. This point was made on the former appeal, but, for reasons stated in the opinion, was not before the court. It was there held that the promise of the company was not collateral or contingent, or one making it a guarantor or surety,
It is possible that counsel are right when contending that such a promise is in excess of the powers of a trust company organized, as this was, under the provisions of G. S. 1894, § 2849, et seq. The question is an open one, for it might be argued with great plausibility that such part of the transaction as required the company to furnish money with which to pay off the indebtedness amounted to nothing more than an agreement to loan money to the debtors, to be paid directly to the creditors. But, whether or not this is true, a determination of the question is not necessary to a disposition of the case. Long before the commencement of this action the Mendenhalls conveyed'their property to the trust company, and the latter retains the same, or the proceeds of a sale. It has received, and still holds, the fruits' or benefits of the contract. Under such • circumstances, it cannot be permitted to repudiate the obligation it assumed, for there are few rules that are better settled, or more strongly supported by authorities, with fewer exceptions, in this country, than that when a contract by a private corporation, which is otherwise not objectionable, has been performed on one side, the party which has received and retained the benefits of such performance shall not be permitted to evade performance on the ground that the contract was in excess of the purpose for which the corporation was created. Seymour v. Chicago G. F. L. Soc., 54 Minn. 147, 149, 55 N. W. 907; 5 Thompson, Corp. §§ 5975, 6016.
3. The contract of date May 1, 1893, provided that, upon the execution and delivery of the deeds off the property, the company should, “within reasonable time thereafter, or as soon as under the circumstances shall be' required,” in addition to certain other payments and duties, “pay all of the outstanding indebtedness of” said Mendenhalls; “such payments not to exceed in the aggregate .the sum of $130,000.” According to its clear and unmistakable terms, the trust company was under no obligations to pay in excess of $130,000; and this amount it was not to pay as of the date of the contract, but within a reasonable time, or as soon as, under the circumstances, should be required, after the debtors conveyed their property to it. Any judgment which was based upon payment of
As the debts exceeded $130,000 when the contract was entered into, and interest thereon was accruing, it was necessary, in order to ascertain ihe percentage to be paid, and to render a proper judgment, for the court to find as a fact at what time the deeds were executed and delivered to the trust company. The only finding on this was that delivery was made “during the year 1893,” and it was further found that the company went into possession of the property “after May 1, 1893.” There was no finding as to when the “reasonable time” for payment arrived, or when, “under the circumstances,” payment should have been required.
■ With a finding simply that the deeds were delivered “during the year 1893,” it is obvious that it must be held that no duty to pay devolved on the company until the year 1893 had expired; that is, not prior to January 1, 1894. The burden of showing the liability on the part of the trust company was upon the creditors in this action, and, taking the most favorable view of the finding for such creditors, no obligation to pay over the sum of $130,000, the maximum limit of liability, arose until January 1, 1894. Interest on the debts prior to that day could not be added to the burden assumed by the company. Such interest, up to January 1, 1894, at the rates stipulated in the evidence of the indebtedness, or at the legal rate if there was no stipulation, in all instances where the debts bore interest, should have been computed, and added to the principal, not for the purpose of compelling the company to pay, in the aggregate, in excess of the amount it had agreed to pay, but simply for the purpose of discovering the basis in percentage on which to distribute the trust fund as of January 1, 1894. All sums which were then determined to be due and’payable as a part of this fund would, if interest-bearing obligations as to the Mendenhalls, thereafter bear interest as against the company, at the rate of seven per cent.; that being the rate fixed in the contract to be paid on all sums paid or advanced by such company. Under its contract, the latter cannot be held to pay interest at a greater rate than that fixed for it to receive.
4. The claims of the intervenors, Webb and the Crane Company, •consisted of open accounts. That of Webb consisted of items of goods and merchandise sold and delivered to Mr. Mendenhall upon different days between April 10, 1889, and April 28, 1893, with items of credits, cash payments beginning May 1, 1889, and ending June 25,1896. The court excluded from the account all debit items subsequent to May 1, 1893, and crediting the account remaining-with the full amount of the payments, found the balance due to be $230.88, on which interest was allowed at seven per cent, from the date last mentioned. This was error, for interest should have been allowed on the balance from June 25,1896, only.
The Crane Company account consisted of items of goods and merchandise sold and delivered to Mr. Mendenhall between June 14 and •October 12, 1892, with credits of cash paid and goods returned between July 30, 1892, and February 6, 1893; the balance found due being $398.40, on which the court allowed interest at séven per cent, from May 1, 1893. This was error, but the trust company has no cause for complaint. Interest should have been computed on the balance from the date of the last item on the debit side, February 6, 1893, up to January 1, 1894, and on this amount the percentage should have been allowed; the amount so allowed to bear interest at seven per cent, from the day last mentioned. But, had this been done, the sum adjudged to be due the Crane Company would have Been more than that found in the judgment. It is probably the law that an account consisting of items of debit and credit is an unliquidated, running account, which will not carry interest, without an agreement express or implied. 'But, from the time of the last item on the debit side of such an account, it must be regarded as closed, and that there is an implied agreement to pay interest on the balance due thereafter.
No other questions need special consideration. That part of the judgment’ appealed from and herein held erroneous is set aside, and, on remittitur being filed, the court below will proceed to ascertain and determine the amounts due to plaintiff and the inter
Concurrence Opinion
In concurring in the result, I wish merely to say that if the word “indebtedness” admits of more than cne construction, according to the subject-matter in contemplation at the time, I think evidence of extrinsic facts would be admissible for the purpose of aiding the court in arriving at the meaning in which the word was used in the written contract j but evidence of antecedent or contemporaneous oral communications between the parties is not admissible for any such purpose. The latter was the character of the evidence offered by the appellant. Moreover, it had no tendency to show in what sense the parties used the word “indebtedness.” Its only effect was to prove that, in their antecedent or contemporaneous negotiations, it was agreed that this particular item of indebtedness was to be excluded. I also1 think that the transaction between appellant and the Mendenhalls amounted, in legal effect, to nothing more than a loan of money by the former to the latter on the security of the property conveyed, and I prefer to dispose of the question of ultra vires on that ground.