Brookins v. Shumway

18 Wis. 98 | Wis. | 1864

By the Court,

DixoN, C. J.

Harwood, being a mere surety, was absolved from all obligation upon tbe bond by tbe extension of tbe time in which, tbe arbitrators were to make and publish tbeir award. Of this we think there can be no doubt. He was not a party to tbe stipulation extending tbe time, nor does it appear that be in any manner assented to it. His co-obligors could stipulate for themselves but not for him. Tbe award was not in 'fact made until sometime after tbe day fixed in tbe bond. Tbe complaint, therefore, shows no cause of action against him, and the judgment must be so far reversed. Thurber v. Jones, 14 Wis., 16.

But as to Shumway, wbo did sign tbe stipulation, we think tbe judgment must stand. Some question is made as to bis relation to tbe other parties to tbe obligation. Tbe complaint alleges that both be and Harwood executed tbe bond as sureties for tbe Twinams, but by tbe bond, tbe conditions of wbicb are set out in tbe complaint, it appears that be executed it as guardian of tbe Twinams, and that Harwood alone was surety. This, however, is not a matter wbicb affects tbe validity of tbe judgment againt him; for whatever were bis relations to the other parties, be is still bound by tbe stipulation. We cannot reverse tbe judgment for any defect in tbe pleadings not affecting his substantial rights. R. S., ch. 125, sec. 40.

It is also urged, tbe time in wbicb the award should have been made having been enlarged, that no action will lie upon tbe bond, but that tbe remedy of the plaintiff was upon tbe submission implied in tbe agreement to enlarge tbe time. In Evans v. Thompson, 5 East, 189, it was determined by tbe King’s Bench, after full argument and upon conferring with the judges of tbe other courts of Westminster Hall, that an agreement in general terms indorsed on a submission bond, as in this case, to enlarge tbe time for making tbe award, virtually included all tbe terms of the original submission, to which it bad reference, as if tbe same bad been formally set forth and repeated therein, and of course included amongst tbe rest tbe agreement contained in tbe condition of tbe bond, that tbe submission should be. made a rule of court. We are quite satisfied with tbe reasoning and authority of that case, from wbicb it follows that tbe plaintiff was not bound to resort to his action upon tbe submission implied in tbe agreement to enlarge tbe time, but that he might sue directly upon the bond as carried along and incorporated in that agreement.

The judgment must therefore be reversed as to tbe defendant Harwood, and affirmed as to the defendant Shumway.