Hubbard v. Haley

| Wis. | Jun 24, 1897

MaRshall, J.

The motion to quash the writ of attachment was properly denied. True, sec. 2731, R. S., provides that a writ'of attachment may issue for a debt not due, upon an affidavit stating the facts in that regard; but there is no controversy here that the debt in question was not due, except $2,000; hence, at most, the writ was improperly issued only as to that amount. In any event, it was not wholly yoid. While it is the law that if a writ, of attachment be issued and an action commenced for a debt no part of which is due, and the statutory requisites are not complied with, the writ should be quashed on motion and the action dismissed (Gowan v. Hanson, 55 Wis. 341" court="Wis." date_filed="1882-09-19" href="https://app.midpage.ai/document/gowan-v-hanson-6603826?utm_source=webapp" opinion_id="6603826">55 Wis. 341), where a part of the debt is due, and part not due, the writ must stand as to the-former, and be dismissed or modified, on proper motion, as to the latter. Levy v. Millman, 7 Ga. 167" court="Ga." date_filed="1849-07-15" href="https://app.midpage.ai/document/levy-v-millman-5551301?utm_source=webapp" opinion_id="5551301">7 Ga. 167; Danforth v. Carter, 1 Iowa, 546" court="Iowa" date_filed="1855-12-15" href="https://app.midpage.ai/document/danforth-davis--co-v-carter-7091014?utm_source=webapp" opinion_id="7091014">1 Iowa, 546; Drake, Attachment, § 33. As intimated in Danforth v. Carter, the motion to quash is in the nature of a general demurrer, and the rule is that where the pleader attempts to state two causes of action and fails as to one, a general demurrer to the whole complaint must be overruled. So here, treating the facts set forth in the complaint as part of the proceedings on the attachment, the motion did not distinguish between that part of the debt which was due and the part not due; and, as the writ was sufficient as to the former, the motion as to the whole was properly denied. The foundation for a writ of attachment tinder the statute is a proper affidavit; that being sufficient on its face, the right to the writ is absolute. Davidson v. Hackett, 49 Wis. 186" court="Wis." date_filed="1880-04-20" href="https://app.midpage.ai/document/davidson-v-hackett-6603123?utm_source=webapp" opinion_id="6603123">49 Wis. 186. The giving of the' bond is not essential to the issuance of the writ, but is to its execution and to the maintenance of the proceedings. B. S. sec. 2732. So, at most, the remedy of the defendant here, on its appearing that a part of the debt was not due, if such were the fact, was confined to a motion for a modification of the writ, under sec. 2744, B. S., on that ground, and a release of the property from the attachment as to the debt not due, because of the failure to give a proper bond.

Under the familiar rule that the findings of the trial court as to questions of fact cannot be disturbed unless contrary to the clear preponderance of the evidence, we are unable to see any justification for disturbing the findings of fact in this case, either as to the issue formed by the affidavit for the writ of attachment and the traverse thereto, or the issues formed by the complaint and answer. Much time might be spent referring in detail to the evidence found in the record bearing on the findings of fact excepted to by appellant Shove, but it is not deemed necessary or advisable so to do; hence we rest the case on this subject by stating the conclusions to which we have arrived; that we have carefully examined the evidence as to each particular fact; that it is quite clear from such examination- that the trial court had a legitimate basis for its conclusions as to each such fact; and, keeping in mind that the circuit judge had a far better opportunity for drawing the correct infei’ences from the evidence than is possessed by the appellate court, that we cannot say there is a clear preponderance of the evidence against his findings of fact, or any of them.

Several questions are discussed in appellant’s brief in a general ivay, without being directed to any distinct assignment of errors. So, to determine the particular errors relied upon from such discussion is not without difficulty. Some defects in the complaint are claimed to exist going to the subject of whether there was a default on the part of the original promisor or promisors so as to render the guarantor Shove liable; but the evidence admitted without objection conclusively shows that the manufacturing company denied all liability under the contract. That made a demand of the company for goods, specifying kinds and prices, as the debt fell due, unnecessary. Any defect in the complaint in that regard could have been cured by amendment on the trial, or at any time on application, without prejudice to the defendant. Therefore such defects, if any there are, constitute no ground for reversal of the judgment. Haney v. The Rosabelle, 20 Wis. 247" court="Wis." date_filed="1866-01-15" href="https://app.midpage.ai/document/haney-v-the-schooner-rosabelle-6599485?utm_source=webapp" opinion_id="6599485">20 Wis. 247; Forcy v. Leonard, 63 Wis. 353" court="Wis." date_filed="1885-06-01" href="https://app.midpage.ai/document/forcy-v-leonard-6604767?utm_source=webapp" opinion_id="6604767">63 Wis. 353.

The point is made and pressed with seriousness that the contract on the part of the manufacturing company was uli/ra vires; hence that the guarantor Shove was not bound. That presents several questions: Eirst. Did the corporation have power under its charter to make the contract? Second. If there were a want of corporate power, can defendant Shove object on that ground? Third. Was Haley authorized to make the contract in its behalf? Eourth. If not originally authorized, was his act subsequently ratified by the corporation? Eifth. If the contract were not binding on the corporation, does that fact relieve the guarantor from liability?

Not all of these questions need be considered. The question of whether the corporation had power to make the contract is immaterial, because the doctrine applies that neither the corporation, nor any private person for it or on his own behalf, can defend successfully on that ground.

The subject of under what circumstances and by whom the doctrine St ultra vires can be invoked against a corporation that has exceeded its powers in the making of contracts has been recently fully discussed in this court in John V. Farwell Co. v. Wolf, ante, p. 10, where the rule was laid down and supported by numerous decisions of other courts, that, if a corporation transgress its power in the making of a contract, the offense committed is against the sovereignty of the state by which it is permitted to have existence, and, except in particular cases of which this is not one, neither party to the contract can invoke the doctrine of ultra vires to avoid it, but the sole remedy is a proceeding to punish the corporation by ousting it from its corporate franchise, and the sole responsibility of applying such remedy is vested in the sovereignty against which the offense is committed. So, it follows, as stated, that Avhether the Manitowoc Manufacturing Company had power to make the contract or not is immaterial to this case.

The third question suggested is immaterial, because the fourth must be answered in the affirmative. It conclusively appears that the officers and directors of the corporation knew of the making of the contract at the time it was made, or soon thereafter; that the corporation, through its officers, after Haley severed his connection with the organization, recognized the validity of the contract for a considerable length of time, and made payments thereon; and the court found as a fact that the corporation was beneficially interested in the consideration of the contract, which consideration was fully paid by plaintiff by turning over his stock, the avails of which went largely to the corporation; hence, it cannot now successfully allege want of authority to make the contract. This -rests on elementary principles of estop-pel by conduct, so well understood and so frequently applied that no citation of authority is considered necessary to justify their application to the facts of this case.

It is further contended that defendant Shove cannot be held liable for want of notice of the default of the principal prom-isor or promisors. He, in terms, guaranteed the performance of the contract on the part of the manufacturing company. The guaranty was for the delivery of the goods in accordance with the terms of the contract. Guaranties of performance and of payment are placed upon the same ground. They are absolute, not collateral promises; hence no notice of the default of the original promisor is necessary. 'Such was the decision of this court at a very early day (Mallory v. Lyman, 3 Pin. 443" court="Wis." date_filed="1852-12-15" href="https://app.midpage.ai/document/mallory-v-lyman-6596798?utm_source=webapp" opinion_id="6596798">3 Pin. 443), and it has not since been departed from. Unlike the contract of an indorser, there is no condition as to demand and notice of default annexed to a contract of guaranty of payment or of performance. Such a guaranty is an absolute promise that the principal will perform in accordance with the provisions of his contract. It is as absolute in respect to such performance as the promise of the principal; hence it is the business of the .guarantor to inform himself as to the conduct of his principal, and, in an action against the former, the facts essential to a recovery are just the same as in respect to the latter. There is no difference. That there is some conflict of authority on this question is recognized, but it is considered that the true rule is as stated, and certainly it has too long prevailed here to be disturbed, even if, as an original proposition, any good reason can be given for such disturbance, .and none is perceived. When a guarantor makes an absolute promise that any particular thing shall be done, he thereby assumes an active, absolute duty to see that it is done, and must, at his peril, perform the promise. While it is true that the guarantee, from his situation as such, possesses better means of knowing of the default of the principal than the guarantor, the latter has ample means of knowing the facts, and must inform himself, and not rely upon the guarantee, wTho owes no duty to the guarantor except to act in the utmost good faith and not be guilty of laches to his prejudice.

The foregoing, it is believed, covers all the questions which require special notice on defendant Shove's appeal. Other questions are discussed in the briefs of counsel, and have been considered, but no reversible error is discovered therein, or reason for further discussion perceived.

On plaintiff’s appeal the question is presented of whether the record shows an entire breach of the contract, so as to warrant a recovery for damages for the last instalment of $2,000. The complaint does not allege an entire breach and repudiation of all liability under the contract; neither is-there any finding of facts in that regard. Plaintiff declared for successive defaults in the payment of sums as they became due,— that is all. Hence it is quite clear that a final breach was neither alleged, nor any facts found to warrant a recovery for such breach, so as to bring the case within the familiar rule that, if the breach of a contract be final and conclusive, damages may be recovered, prospective as well as those suffered up to the time of the commencement of the action. 3 Parsons, Cont. (8th ed.), *189; Remelee v. Hall, 31 Vt. 582" court="Vt." date_filed="1859-01-15" href="https://app.midpage.ai/document/remelee-v-hall-6576624?utm_source=webapp" opinion_id="6576624">31 Vt. 582. The weakness of plaintiff’s position is that while he asked for judgment covering prospective damages, as well as those already accrued, the facts alleged do not constitute a final breach. There is no allegation of denial of liability, but simply of a refusal to deliver the goods that had become due. It cannot therefore be said that damages for failure to deliver goods not due were caused-from the breach complained of. It is absolutely necessary to a recovery of prospective damages that they proceed from the cause of action set forth in the complaint. These reasons are considered sufficient to warrant the conclusion reached by the trial court that, as to the $2,000 of the last instalment of $4,000, no damages had accrued up to the time of the commencement of the action from any facts alleged in the complaint, or found to exist within the issues made by the pleadings.

By the Court.— The judgment of the circuit court is affirmed on both appeals.