10 Wyo. 135 | Wyo. | 1902
This action was brought in the District Court by defendants in error as plaintiffs against plaintiffs in error and one John H. Ward as defendants, by a petition of a single count, alleging “that the defendants herein jointly and severally promised to pay to the plaintiff the sum of eight dollars per day and expenses for each operative sent out by plaintiffs to perform certain investigations in the matter of the murder of one Harvey Booth in Evanston, State of Wyoming, on or about January 27th, 1895. That at the special in
The defendants named in said petition were John H. Ward, Thomas Blyth and Charles E. Stone. Issue was joined by a general denial, and a trial resulted in dismissing said case as to defendant John H. Ward, and findings-and judgment against the plaintiffs in error, Thomas Blyth and Charles E. Stone, for the amount claimed, with interest. From said judgment, said Thomas Blyth and Charles E. Stone come to this court alleging the following errors, as set out in their motion for a new trial:
1. The finding of the court is not sustained by sufficient 'evidence.
2. The finding of the court is contrary to the evidence.
3. The finding of the court is contrary to law.
4. The court erred in excluding from the evidence in said cause the letter of one W. R. Stoll, dated June 9th, 1896.
5. The court erred in excluding from the evidence the following portion of that certain letter written by W. R. Stoll to the defendant Thomas Blyth, and dated June 9th, 1896, which is in words and figures following, to-wit:
“That I was obliged to wire for Mr. Ward, and obliged to accept the assistance of the Pinkertons in tracing certain matters down. Mr. Ward will explain these matters to you in detail. I had to guarantee their expenses, upon the belief that they would be guaranteed by you or some others when-the facts became known.”
6. The court erred in refusing to permit the defendant to prove by the witness Thomas Blyth, one of the defendants in said cause, that the said witness supposed that the plaintiffs were performing their services for which this claim is made in this cause for W. R. Stoll, and not for the defendants.
8. The court erred in refusing to permit the defendant to prove by the witness, Thomas Blyth, one of the defendants in said cause, that he, the said Thmas Blyth, did not in any way understand that the presence or services of the plaintiffs, or any of them, in rendering the services here in question, were performed under any employment, through or under the defendants, or for which they were in any way responsible.
9. The court erred in refusing to permit the witness, Thomas Blyth, one of the defendants in said cause, to testify as to his reason for not objecting to the presence and employment of the plaintiffs in performing the services sued for in this cause.
A statement of facts from the record in this case proves most unsatisfactory, and is in substance as follows: That on or about January 27th, 1895, one Harvey Booth was murdered in Evanston, Uinta County, Wyoming, and as a result of negotiations between John H. Ward, originally one of the defendants herein, who was at the time sheriff of said Uinta County, defendant in error, the Pinkerton Detective Agency was on February 10th, 1895, regularly employed by Thomas Blyth, one of the plaintiffs in error, in the matter ■of the investigation of said murder. The date of such employment is fixed by the evidence to the effect that before services are rendered by defendant in error a guarantee is always required, and the one introduced in evidence herein bears that date, and reads as follows:
"guaranTRR.
‘Tn consideration of the services hereafter to be rendered by the Pinkerton National Detective Agency for Harvey Booth of Evanston, Wyo., I, Thomas Blyth, of Evanston, Wyo., hereby guarantee the payment of said agency’s bill for services in the case at the rate of $8.00 per day, and the*144 expenses of each operative from the time they leave the office of the agency until their return.
“Thos. Blyth. [Seal.]
“Chas. Stone. [Seal.]
“Jas. McParland.
“Feb. ioth, 1895. .Denver, Colo.”
As has been said, the record is unsatisfactory; the reason being that it fails to show when the first trial at Evanston was had, who was tried, except by inference, what kind of a verdict, if any, was found, and how it became competent to change the venue to Cheyenne. Counsel for defendant in error supplies some omissions in the record which are important, in his brief, as follows:
“The statement of the case made by counsel for defendant Blyth, while correct in the main, argument omitted, is rather brief and not given in order of time. For these reasons a new statement is made, giving more detail. “Statement — One Harvey Booth of Evanston, Wyoming, was murdered about January 27th, 1895. The Pinkerton National Detective Agency was hired to investigate the murder with view of bringing murderer to justice. A representative of the Pinkertons, in order to secure payment of services to be rendered by agency, secured the following paper, signed by Thomas Blyth and Charles E. Stone. The paper was a printed blank used by the Pinkertons, the words underlined being written by hand.” Then follows the guarantee as set out hereinbefore, and continuing: “Services were rendered, several operatives being employed. As a result one Crocker was arrested, tried in Evanston, convicted. New trial and change of venue granted; tried second time in Cheyenne and acquitted. The murder case closed in Cheyenne about July 1st, 1896.
“All bills rendered by Pinkertons in first trial were paid either by or through Blyth, who was brother-in-law of murdered man, and also his administrator. Blyth was present on second trial, knew the Pinkertons were rendering services, and knew that they held his guarantee, but never re*145 called it. There is evidence that Blyth offered $250 as payment of account now in judgment, and after offer was rejected, renewed promise of payment, also that he gave out an idea of his being responsible for payment.”
Stopping at this point, where the trial court, as from the record appears, had no right to stop for want of information that at any time any one transaction had been completed; we find that, as is claimed, the employment of defendant in error, occasioned in part by the guarantee in evidence, had resulted in' the arrest of Crocker for the murder of Booth, and that their services had been dispensed with (which is claimed temporarily) by the demand that their operative be recalled and the payment by Blyth of all claim and demands to that date (April, 1895).
There is no conflict in the evidence as to what occurred at that time. Mr. McParland, superintendent as aforesaid of defendants’ agency in Denver, testified: “A good deal of work was done in the way of making investigations as to the murder of Harvey Booth. Bills for work done in January, February, April, 1895, were paid by Thomas Blyth.” The testimony of Thomas Blyth as to what occurred in April, 1895, not denied, is as follows:
Q. The day prior to the settlement and payment in April, 1895, what had been clone, if anything, with reference to discharging Pinkertons in the matter ?
A. I wrote to Mr. McParland to recall the detectives and send the bill.
Q. What was done under that ?
A. The detective was immediately recalled and bill rendered.
Q. And was paid?
A. Yes, sir.
Q. Who else was cognizant of the recall ?
A. Mr. Beard and Mr. Ward.
Subsequently and while defendant in error had no con1 nection with the case Crocker was tried, convicted of the murder of Booth, made application for a new trial, which
In June, 1896, more than a year after the services were rendered by the defendant in error under the guarantee aforesaid, and the same had been terminated by accord and satisfaction, as is claimed by plaintiffs in error, Mr. Stoll discovered an emergency requiring the assistance of a detective, and by wire secured the services of defendants in error, and from then on and during the second trial the services sued for, which are admitted were of the value claimed, were rendered.
Mr. Stoll, after securing the services of the defendant in error as aforesaid, on June 9th, 1896, wrote Mr. Blyth in part as follows: “That I was obliged to wire for Mr. Ward and obliged to accept the assistance of the Pinkertons in tracing certain matters down. Mr. Ward will explain these matters to you in detail. I had to guarantee their expenses upon the belief that they would be guaranteed by you or some others when the facts became known.”
The sustaining of the objection to the offer of the part of the letter aforesaid forms the fifth ground in the motion for a new trial presented by plaintiff in error, Charles E. Stone. The evidence discloses the fact that while the services sued
During the second trial the office of Mr. Stoll was the place where the meetings of those interested in the prosecution was held, and, as the. statement was. made in the brief of defendants in error, arid in the argument of counsel before this court, based thereon that “there is evidence that Blyth offered $250 as payment of account now in judgment, and after offer was rejected renewed promise of payment, also that he gave out an idea of his being responsible for payment,” referring to certain evidence. We will give that evidence. William B. Sayles, an operative of defendant in error, upon that point, testified as follows:
Q. Now you may' state what conversation you had with Mr. Blyth in regard to pay for the agency.
A. It was on the occasion of a meeting I had with Mr. Blyth, Mr. Hamm, Mr. Ward and Mr. Stoll in Mr. Stoll’s office in this town, in which, actin'g under instructions from Mr. McParland,- I wanted to get advance expense money, and said that I had been instructed by Mr. McParland to get money on expense account in this matter. During that conversation Mr. Hamm, who was acting attorney, and also Mr. Blyth, asked if two hundred and fifty dollars would be the amount of expense, and had a paper drawn up to that effect if I would accept. I was not authorized to accept two hundred and fifty dollars, or any sum. I told them I was not authorized. I told them I traveled a good deal on the railroad, to Deer Lodge, to Salt Lake, two or three trips to Denver here. I said I knew my railroad expenses were prétty heavy. I said that I didn’t know the amount and refused it. Then I was given to understand — I remember the conversation quite distinctly at that time in the office, Mr.
Q. Who said that the matter would be satisfactorily adjusted?
A. Mr. Hamm or Mr. Blyth, I don’t know which one.
Q. Were they both present at the time ?
A. They were both present; I don’t know who spoke; so far as that statement, I cannot swear.
Q. If Mr. Blyth did not make the promise, he made no objection to it when it was made?
A. All four were present when this was done. Mr. Stoll, I think, had gone out of the room and was in his office. I know we were all in the building.
Q. Did they at that time ask you to continue the work?
A. I don’t know that they asked me to continue the work. I was working at that time in the discharge of my duties of my work at that particular time that day.
Q. Was there any difficulty about your pay; were you going to' quit or keep on working if you did not get your money ?
A. I did not say I was going to quit; I spoke to Mr. Stoll about it, and I spoke to Mr. Ward at that time about it. I was given to understand it was all right. We were all four present at one time during the day.
Q. (By the court.) Who were the four?
A. Mr. Stoll, Mr. Ward, Mr. Hamm, attorney in the case. * • * *
Q. Just be clear on one point; you may state whether or not in the conversation you heard in Mr. Stoll’s office any of the defendants in this case, or any other persons, promises were made that pay could be forthcoming. (Objection to form of question.) By the court: Ask what was said with reference to pay at the time and place.
A.- I can’t give you the eaxct words. It has been some years ago, and I don’t recollect the exact words. The substance of it was that the settlement of the bill of services would be all right in this case. The substance of the’ conversation was that the bill would be paid.
.Q. You do not know who it was said your services would be paid; you do not know whether it was Hamm or Ward or Blyth?
A. No, I do not know.
Q. Mr. Hamm was not an attorney for-Mr. Blyth?
A. Mr. Hamm, I don’t know anything about that; he was connected with the case.
Q. He was County Attorney of Uinta County, and authorized in a way to contract bills for that county.
A. I did not know anything about that; at that time I would not have taken any authorization from Mr. Hamm without knowing what he did it on.
Q. Whatever was said, you do not know whether it was Mr. Hamm or somebody else?
A. Mr. Hamm offered this paper $250 settlement, which I refused; asked if that is right, I said no. They wanted to know how much it would be, wanted me to make statement. I said, No.
Later on the same witness testifies as follows:
Q. It was not settled who would pay it, is that what you mean to say?
A. It was my understanding that the services would be paid for in the presence of Mr. Blyth, Mr. Hamm and Mr. Ward, all of whom heard it at that time as well as I heard it.
Q. As I understand you, you don’t know who?
A. One of those gentlemen.
Mr. Blyth testified about the matter above referred to as follows:
Q. You have heard Mr. Sayles’ statement as to the conversation in Mr. Stoll’s office, when you and Mr. Ward and Mr. Hamm were claimed to have been present. You may state what, if anything, of that conversation occurred.
A. I never had any such conversation in Mr. Stoll’s office.
Q. You have heard the testimony here of Mr.’ Sayles as to the conversation in his presence in relation to payment of Pinkertons for their services; did you hear the testimony?
A. Yes, sir.
Q. You may state whether at any time there was an agreement by Mr. Blyth or yourself, or anybody in your presence, that that bill should be paid?
A. Not in. my presence, sir.
Mr. Hamm, the other person referred to by witness Sayles as having been present at the time of the conversation referred to, was not a witness in the case.
Charles Stone, one of the plaintiffs in error, against whom judgment was rendered in the court below, and who has been described in all the pleadings and proceedings, except in the guarantee which he signed, as Charles E. Stone without any apparent cause, testified in part as follows:
Q. You may state what knowledge you ever had during the time of its performance of any service by the Pinkertons in this matter after the settlement was made in April, 1895.
A. None whatever.
Q. What authority did you give to anyone-to employ Pinkertons on your behalf or anybody else to do detective work after April, 1895 ?
A. None whatever.
The above evidence is not modified, qualified or questioned in the entire record.
It is not necessary to continue the unraveling of facts which seemed to be required, for the reason that all parties appeared to rely upon the general notoriety gained by the terrible murder out of which this controversy grew, and the attempts made by the State of Wyoming and private individuals to find, present and punish the guilty.
Counsel for defendant in error includes in his brief the opinion claimed to have been announced by the trial judge in rendering his judgment, which is not included in the record of the case before us. While it would not be fair to quote
“That it was a continuing contract in the light contended for by the plaintiff seems clear to the court, and that it appears further equally true that there was no cancellation of the contract by the defendants. And that the contract expired at the close of the second trial; and that the account sued on is a just debt under the contract.”
We are constrained to ask, Why did the contract expire at the close of the second trial ? It was at the close of the first trial that it was thought the murderer of Harvey Booth had been discovered and brought to justice. At the close of the second trial this was found to be a mistake, and all the efforts and expenditures had been for naught.'
The diligence of the attorneys in presenting authorities applicable to the proper consideration of this case must be commended, and as there is little if any dispute as to the law that should govern, we have discussed the facts at length. The plaintiffs in error insist that the guarantee in evidence is not a continuing guarantee, and that there is nothing in the instrument itself fixing the limits of time for which it shall run nor fixing the aggregate amount for which it shall be good, and that such instrument cannot be construed as a continuing guarantee. “That a guarantor like a .surety is bound only by the strict letter or precise terms of the contract of his principal, whose performance he has guaranteed, and in this respect he is a favorite of the law, and that this must be remembered in determining the liability, and that he has the right to stand upon the strict terms of his obligation when
As to the contention made by plaintiffs in error that by the terms of a guarantee, such as is here in evidence, the guarantor cannot be held beyond the immediate transaction, counsel cite Birdsall v. Peacock, 32 O. S., 177, the case briefly stated being as follows: The guarantee was: “Send my son the lumber he asks for and it will be all right.” The son at once bought $226 worth of lumber on credit and after-wards paid for it. But the matter did not stop there. The first purchase was May nth, 1868; afterward he bought additional lumber down to January, 1869. The court confined the guarantee to the first purchase of May nth, 1868, and in closing a very interesting opinion says : “The better opinion would seem to be that such an instrument should be confined to the immediate transaction, unless the language of the promise is sufficiently broad to show that it was meant to reach beyond the present, and render the guarantor answerable for future credits. The tendency of decisions in this country has accordingly been against construing guarantees as continuing unless the intention of the parties is so clearly manifested as not to admit of a reasonable doubt. 2 Am. Lead cases, 141, citing Congdon v. Read, 7 R. I., 576.” And several other cases are cited.
In the case of Gard v. Stevens, 12 Mich., 292, the guarantee was: “If you will let the bearer have what leather he wants and charge the same to himself, I will see that you have your pay in a reasonable time.” The court in discussing this question says:
*153 “As the plaintiff sold the leather to Gates at several dif-. ferent times and for different amounts, the first question is whether the guarantee is limited as to time. We think it limited to a single purchase or transaction. We must hold this, or that it is unlimited both as to time and amount. Every person is supposed to have some regard to his own interest, and it is not reasonable to presume any man of ordinary prudence would become surety for another without limitation as to time or amount unless he has done so in express terms or by clear implication. If the guarantee was limited in express terms, either as to time or amount, but not as to both, it might be said it was the intention of the guarantor to leave it open as to the other, or that a further limitation could not be implied. But where it contains no express limitation as to either, and there is nothing in the instrument itself from which it can be inferred that it was the intention of the guarantor to leave it open as to both, we think it must be understood as referring to a single transaction.”
In the case of Rogers v. Warner, 8 Johnson, 119, the guarantee was: “Our sons wish to take goods of you on credit. We are willing to lend our names as security for any amount the)'' may wish.” Goods were bought at several different times on credit. The court says: “The true construction of the letter of credit is that it is to be confined to the first parcel of goods. It would be unjust and unreasonable to •extend it to an indefinite credit for an indefinite time.”
To the same effect were the following authorities cited by plaintiffs in error. (Anderson v. Blakely, 2 Watts and Sergt., 237; Aldrich v. Higgins, 16 S. and R., 212; Brittain Dry Goods Co. v. Yearout, 54 Pac., 1062; Cremer v. Higginson, 1 Mason, 323; 6 Fed. Cases, 797, and many others.)
Defendant in error contends that the guarantee in evidence is a continuing one, “and in order to determine that question we have to construe its terms in the light of other surrounding circumstances at the time of its execution.” And several authorities have been cited in support of that contention,
Reference is made in the record of the case in the court below several times to the fact that the plaintiffs in error, Blyth and Stone, never cancelled or recalled the written guaranty signed by them. They both admitted it on the witness stand, and the court, if correctly quoted by counsel, attached some importance to that fact.
Counsel for defendant in error refers to the same both in his brief and argument in this court and cites us to Lanusse v. Barker, 3 Wheat., 101, and we quote from the syllabus, which correctly states the opinion upon that point: “When an authority has been once given to a merchant abroad and has been acted on in good faith, implied revocations are not favored, it is incumbent on the principal to show a revocation in terms too clear to be charged with equivocationand also in the same case the language quoted by counsel: “Nowhere in the evidence is it shown that the guaranty had been revoked or recalled. To revoke the guaranty explicit language should be used.” Counsel is excused without the asking for failing to call our attention to the language of the court upon this subject in Twohy v. McMurran, 57 Minn., 242, cited by him upon another branch of the case, one already considered. We quote: “The fact that the guaranty itself was not taken up by defendant at the time he’clairiis to have paid, in accordance with its terms, cannot be regarded as a practical construction of its language or an admission that it was continuing.” We have not found any authority to the contrary.
We are of the opinion that the guaranty offered in evidence
