Elmore v. Hoffman

6 Wis. 68 | Wis. | 1858

By the Gowt,

Cole J.

We are of the opinion that all the contemporaneous writings relating to the same subject matter were admissible in evidence, and therefore consider the ruling of the Circuit Court respecting the contract of September 8th, 1856, as erroneous. The note upon which the suit was brought and this contract were parts and parcels of the same transaction, and the appellants, in connection with the contract, offered to show that the appellee took the note with full knowledge of all the terms and conditions of the contract. The note therefore in bis possession was subject to tbe same equities as though it belonged to the payee, Jung. Consider then this note in the same light as though there were attached to, and made a part of it, all the conditions of the contract affecting its payment, and how does the case stand ? One of the conditions of the contract was, that Jung agreed and promised to give day of payment upon the note until Hoffman, the principal defendant, had been legally discharged from all liability upon a certain bond'upon which he had become security for Jung. It is not pretended that there is any doubt about the intent and meaning of the parties in entering into this stipulation. The language of the contract is too clear and unambiguous to leave room for a question upon this point. The payee, for a good and valuable consideration promised and agreed to give day of payment on the note, or in other words, not to ask, demand, or attempt to collect the money due upon it until Hoffman should be discharged from liability upon the bond named in the contract. Suppose Jung had brought this action, would a court permit him to recover in the very teeth of a contract taking away his right of action ? It would certainly be most inequitable to suffer him to repudiate his written promise, and fly in the face of a most positive, fair engagement. But it is insisted that there is a technical objection to this defence, it being an attempt to bar an action against these contractors by means of a collateral contract in favor of one of these contractors. But we do not so understand the matter. Suppose the condition had been incorporated in the note, that day of payment was to be foreborne until the happening of any event: manifestly the makers could all avail themselves of the defence. Now this note and contract must be read in connection, as really forming one contract.

Moreover, we think it quite apparent from the whole contract, that Sauer and Millman were accommodation makers, and never received any consideration for the note. They are unquestionably the “ satisfactory endorsers ” named in the contract, and therefore it seems the more inequitable to shut out the defence offered. Whatever doubt there may be respecting the strict technical right of the appellants to come in with the defense interposed, we believe we are subserving the cause of substantial justice, and holding the parties to bona fide engagements, by permitting the appellants to set it up in this cause.

The judgment of the circuit court is reversed, and a new trial ordered.