79 Wis. 365 | Wis. | 1891
The following opinion was filed February 24, 1891:
The facts are undisputed. 1. It is claimed that the several signers of the original agreement thereby agreed jointly, but not severally, to pay to Davis & Rankin
“ The construction of a contract is nothing more than the gathering of the intention of the parties to it from the words they have used.” Di Sora v. Phillipps, 10 H. L. Cas. 638. In the ascertainment of the thought or purpose so expressed, regard must undoubtedly be had to the whole instrument, as applied to the facts and circumstances .to which it relates. Jacobs v. Spalding, 71 Wis. 189. When the agreement, so considered, reveals some obvious absurdity or some repugnance or inconsistency with such manifest intention, then, to avoid such consequences, but no further, the meaning of the particular words employed may be modified, extended, or abridged.
Here the language is: “ We, the subscribers hereto, parties-of the second part, agree to pay the above amount; ” and
2. Counsel claim that the defendant was released from liability by reason of the building being completed according to the contract as modified, instead of the original. Put the modification was made by the agreement of a majority in number and amount of the subscribers, who must be regarded as the representatives of the unincorporated association. Manifestly the change improved the building. The defendant is not called upon for any portion of the additional expense by reason of the change. The agreement contemplated the completion of the building within
3. Counsel claim that there was no consideration to support the promise. It is well settled that any benefit or advantage to the party making the promise, or any inconvenience or damage sustained by the .party to whom the promise is made, is a sufficient consideration to support a promise to pay. There are authorities going to the extent of holding that, where several persons subscribe, or agree to contribute, to a common object, the promise of each is a good consideration for that of the others. But we need not go to that extent in this case, since all the authorities agree that where, as here, the persons to whom the subscriptions run have expended money or incurred obligations on the faith of such subscriptions, it is a sufficient consideration to support the promise therein to pay. Eycleshimer v. Van Antwerp, 13 Wis. 546; Lathrop v. Knapp, 27 Wis. 214; La Fayette Co. M. Corp. v. Magoon, 73 Wis. 627; Troy Conference Academy v. Nelson, 24 Vt. 189; Barnes v. Perine, 12 N. Y. 18; Pitt v. Gentle, 49 Mo. 74; Homan v. Steele, 18 Neb. 652.
4. Counsel claim that the defendant was released from liability by reason of the association being incorporated with a larger amount of capital stock, and a larger number of shares, and a less amount for each share, than contem
By the Court.—The judgment of the circuit court is affirmed.
A motion for a rehearing was denied April 9, 1891.