81 Wis. 33 | Wis. | 1891
The respondent, Henry Brinlcer, and the appellant J. G. Meyer were partners in the lime and cement business. The respondent sold out his interest in said business and in its credits to the new firm,'consisting of said J. G. Meyer and T. F. Hubbell, and the firm of Meyer da Hubbell, as principals, and Jolm MeGarf/y and Fames M. Haggerty, as sureties, gave the respondent a bond indemnifying him against all debts and claims against the old firm. This action is on the bond, alleging that they were indebted to R. O. Dun &>Co. in the sum of $15, and that said R. 0. Dun & Co. obtained judgment thereon against the respondent and the appellant J. G. Meyer before a justice of the peace, together with $11 costs; and that the defendants therein appealed to the circuit court, and the appeal was dismissed for want of prosecution, with $40 costs. Execution was issued on said judgment against the respondent and said Meyer, and the respondent has been compelled to pay the same, together with said costs, and this action is to recover the same against the appellants; and judgment was rendered against all of the appellants, as the obligors of said bond, for the same, and this appeal is from said judgment.
The defendants, except said Meyer, answered, alleging, in substance, that there was a list or schedule of the debts of the old firm made when the bond was given, and this debt in favor of Dun & Co. was not on it, and that respondent assured the defendants that said list contained all of such debts, and that he fraudulently left several hundred dollars of assets out of said list, and that the subject matter of this action had been settled. The court withdrew from the
Tbe only error complained of is tbe withdrawal from tbe jury of tbe matters of tbe answer relating to said list or schedule of tbe debts of tbe old firm. Tbe learned counsel of tbe appellants contend that said list ought to have been received in evidence as a part of tbe bond, because it was made contemporaneous with tbe bond, and present at tbe time. Tbe language of tbe condition of tbe bond is that, “ whereas Meyer and Subbell agreed to pay all tbe outstanding bills and accounts owing by said Brinleer and Meyer” and “ provided tbe said Meyer and Subbell pay all just and legal debts due or owing as aforesaid, the obligation to be void, otherwise to be and remain in force.” Tbe admission in evidence of such list or schedule as containing all tbe debts owing by said Brisker and Meyer, and tbe debt to the said Dun & Co. left off said list, would materially alter, change, and modify tbe above condition of tbe bond. It would not then be to pay all the debts owing by Bri/nker and Meyer, but would be to pay only the debts mentioned on said list. Tbe bond is silent as to such list. Such evidence would show a contemporaneous agreement as to tbe ■ payment of thé debts materially different from tbe condition of tbe bond, and this is not allowed by a familiar principle of law. Racine Co. Bank v. Keep, 13 Wis. 209. It would require parol evidence to connect tbe list with tbe bond so as to vary or alter its condition, and such evidence is inadmissible. Jilson v. Gilbert, 26 Wis. 637; Knox v. Clifford, 38 Wis. 651; Strachan v. Muxlow, 24 Wis. 21.
Tbe ruling of tbe circuit court was correct, and there does not appear to have been any error in tbe record, except as to tbe costs in tbe original judgment, wbicb make a part of tbe judgment against all tbe defendants. It does not appear that any notice was given to tbe defendants
By the Go%urt.— The judgment of the circuit court as to the defendant J. O. Meyer is affirmed, and as to John McCarty, T. F. Hubbell, and James M. Haggerty is reversed, with option to the plaintiff to remit said costs and take judgment for the residue; otherwise the cause is remanded for a new trial therein as to the said last-mentioned defendants.
