38 Wis. 279 | Wis. | 1875
The learned counsel for the appellant rests his whole case upon the effect of these words in the assignment of the contract, viz: “upon its complying with the conditions in said contract mentioned.” and frankly concedes that were such words omitted therefrom, the complaint would state a cause of action against all of the defendants. His proposition is, that having conveyed to the “ Ames Wood Pulp Company ” under the authority conferred by the assignment, but qualified by the clause above quoted, the plaintiff elected to look to that company alone for the performance of the stipulations contained in his contract with the defendants, and can maintain no action against the latter-for nonperformance thereof. In other words, it is claimed that the assignment must be construed as though the following or equivalent words were added to it: 11 Provided, however, if said Bowen conveys the
We find in the assignment evidence that the defendants sought to charge the company with some, perhaps with all, of its liabilities under the contract; but in the language employed we find no evidence that they sought to relieve themselves from any such liabilities. When the conveyance was made, the plaintiff had not surrendered his stock, and* no one was then liable to him therefor. After such conveyance, the agreement of the defendants to pay the plaintiff for his stock in case he surrendered it to them became an independent personal covenant of the defendants, just as it would have been had the plaintiff conveyed the premises to them instead of the company.
How far the company may be liable over to the defendants on account of the surrender of the stock by the plaintiff, or whether the latter has a cause of action against the company, we are not called upon to determine. It is sufficient, for the purposes of this appeal, to say that we are unable to give to the assignment the interpretation contended for on behalf of the appellant, and we must hold that the defendants remain liable under the contract for the stipulated price of the surrendered stocks and the agreed profits thereon ; and hence, that the demurrer to the complaint was properly overruled.1
By the Court. — Order affirmed.