45 Iowa 538 | Iowa | 1877
The third clause of the' contract fixes the time when the machines are to be paid for, and if the contract stopped there evidently the meaning would be that the indebtedness should be paid in four months in cash. In other words, there was to be a credit of four months. It is then provided that if cash is paid in thirty days from the date of the bills there was to be a certain discount made. So far, it is entirely clear only cash was contemplated. Then follows the further provision that the plaintiff “will also accept such notes as second party (McGinnis) may receive from his customers in payment of any invoice.” That is to say,- McGinnis might, if he saw proper, pay in notes of a certain description, and plaintiff was bound to accépt them. But this option to pay in notes contemplates an offer or tender by McGinnis, not a demand for them by the plaintiff. The latter could not have compelled' a payment in notes; why, then, should there be a demand on McGinnis to do what he could not be compelled to perform? Such useless form and ceremony was not required. The indebtedness was incurred by the delivery of the machines, which, under the terms of the contract, could
The word “otherwise,” as used in defendants’ guaranty, taken in connection witb what precedes it, must have this broad and general interpretation, and such evidently was the intent of the parties. •
It will be seen there were ten notes referred to in the petition and amendment, nine being in the former and one in the latter, while the finding of the court refers to but eight of the notes set out in the petition, but we have no means of determining which of the notes named in the petition are the ones referred to by the court in the finding, as the abstract fails to show that all the evidence is before us. The court below was unable to determine when the notes were turned over under the contract. Under this state of facts it is impossible for us to say that the defendants are liable for the amount of said notes. We are unable to determine that these notes fall within either of the classes defendants bound themselves to pay. . It will be remembered the notes were to become due on an average within six or nine months from Ríe date of the invoice. The fact they were payable within those periods does not necessarily show this, and for aught that appears four months from the date of the invoice may have expired before the date of the notes. Nor can we determine as to the average.
The contract contemplates the average time shall not exceed six or nine months on the notes turned over in payment of each invoice. It was not intended that McGinnis should order goods every month for a period of six months, and then on the date of the last order or invoice pay for the whole in notes. If Ely’s deposition be taken as true McGinnis ordered on May 4th, 1872, $118.75 worth of goods; for these an invoice was undoubtedly sent him. Now he could pay for this invoice in the specified notes, and so on as to each invoice. Before the defendants can be held as guarantors of the notes they must be of the character guaranteed. Being sureties they are only bound to the extent of their contract. If the plaintiff took other and different notes than was provided by the contract, or gave additional time to McGinnis in which to make payment, or waived any of the material conditions on which
Y. Defendants moved to suppress portions of the answers to inteiTogatories 6 and 8 in chiéf in the deposition of Walker, plaintiff’s shipping clerk, which motion was sustained. As neither interrogatory 6 or answer thereto is contained in the abstract we have no means of determining whether the court decided the question correctly or not.
Interrogatory 8 and answer is as follows:
“State whether or not any statement of account shows fully how much is due from defendants. If not, state in what else defendants, or either of them, are indebted, and state fully all the transactions between plaintiff and either of defendants.
“ Ans. I have no way of knowing the balance due. [I only know that said statement of account, marked exhibit F, shows fully and truly the goods and merchandise shipped by plaintiff to defendant, McGinnis, the time when shipped and their value respectively as indicated in said exhibit.]”
The objection'made to the foregoing answer was that the portion contained in brackets was not responsive to the question, and on this ground the motion was sustained. In this ruling there was error. The latter clause in the question is quite broad, and a part of the transactions between plaintiff and McGinnis was the shipment of the goods, and this seems to us to be directly responsive to the interrogatory.
On the same ground the defendants moved to suppress the answers to cross-interrogatories 10, 11 and 13. Interrogatory 11 is not in the abstract, and the ruling as to interrogatory 13 was correct.
Interrogatory 10 and answer are as follows:
“Then you do not know that the claim of indebtedness on which plaintiff brings this suit is for goods shipped to him, do you?
Ans. I only know the fact that the goods mentioned in exhibit F (of Ely’s deposition) were shipped by plaintiff to defendant, McGinnis, but what the state of the account is at present, or what balance there may be due, I have no knowledge except what I hear from others.”
“Law and Collection Office of S. N. Lindley, ) Newton, Iowa, March 9, 1875. )
Davis Sewing Machine Go., Gentlemen: You have a bond signed by Ed. G. Fish, Peter Hays, Geo. Meyer and others, indemnifying your company for undertakings of John "VY. McGinnis, and common justice requires that these men thus bound should have a fair chance to secure themselves against loss. You have some notes aggregating about $213.33, and which they inform me can be collected if at once attended to, and if they had the proper means they could secure part at least from McGinnis himself. Please send the notes to your attorney for this district for collection. If you have no collector I would endeavor to collect as soon as possible. Also send me copy of the bond with authority to sue the principal and sureties both. This I suggest in behalf of the sureties, so that they may be sued in conjunction with McGinnis, and have an attachment against him, so that we can secure them from loss if possible. Your early attention to this will oblige.
Yours respectfully, S. N. Lindley.”
Conceding that defendants can avail themselves of this letter written by Judge Lindley we think it does not comply with the statute. There was no request or notice to bring suit, but the plaintiff was requested to send the writer a
Reversed.