John A. Tolman Co. v. Butt

116 Wis. 597 | Wis. | 1903

Cassoday, C. J.

The liability of the appellants is based upon the bond or written guaranty, which speaks for itself.

1. Error is assigned because the court held, as a matter of law, that the appellants were liable thereon after the termination of the first year. The contract so guarantied was “for one year from date,” and might “continue from year to year.” The guaranty expressly covered “all moneys and goods” which the plaintiff might “from time to time advance” to Russell, and “any and all indebtedness” which might thereafter “become due to” the plaintiff “from him, whether by the terms of any contract or not, in excess of the amount due” Russell, and each of the appellants, and Russell therein agreed “that any extension” might “be granted” to Russell “at any time, without notice or affecting” his “liability,” lip to the amount therein stipulated; and that “for such amounts” the guaranty was therein declared to be “intended as a continuing guaranty until revoked by notice in writing.” The plaintiff’s contract with Russell was extended, and did continue from year to year until March 15, 1900, when Russell quit the services of the plaintiff, without its consent. •Such being the express terms of the contract and guaranty, we are unable to perceive any ground for holding that the .guaranty did not cover the entire time during which Russell was so employed under the contract. Counsel for the appellants cite a half dozen adjudications in which the plaintiff in this case was a party, and say:

“The date of the above decision is given for the purpose of showing that the plaintiff is continually changing the language of its contracts and bonds for the purposes of circumventing and avoiding the construction placed upon them by the courts in the above cases.”

The question here is whether this contract will bear the ■construction which the trial court put upon it. It is enough to say that the guaranty in question contains provisions and ■agreements upon the part of the appellants not found in any -of the agreements of the guarantors in any of those cases. Especially is this so as to the clause, “whether by the terms of any contract or not.” And yet two of those cases are against the contention of the appellants. John A. Tollman Co. v. Bowerman, 5 S. D. 197, 58 N. W. 568; John A. Tolman Co. v. Griffin, 111 Mich. 301, 69 N. W. 649; John A. Tolman Co. v. Reed, 115 Mich. 71, 72 N. W. 1104. See, also, John A. Tolman Co. v. Rice, 164 Ill. 255, 45 N. E. 496. We must hold that the guaranty covered the liability from May 1, 1897, to March 15, 1900.

2. Error is assigned because the court refused to permit the appellants to show that Russell was largely indebted to the plaintiff when the guaranty was executed, and'that the appellants were ignorant of that fact. There is no evidence • tending to prove that the appellants were induced to sign the guaranty by reason of any fraud, misrepresentation, or deceit on the part of the plaintiff. The very fact that the plaintiff exacted such guaranty shows that it was unwilling to trust to the responsibility of Russell alone. Such proposed •evidence was clearly irrelevant, and was properly excluded.

3. Error is assigned because tbe court refused to strike out tbe deposition of Samuel A. Tolman, or to permit proof that it bad been materially altered. It does not appear that it was altered after it was signed by tbe witness. Besides, it was stipulated in tbe case, before sucb ruling, tbat tbe exhibit mentioned in that deposition should be received and read in evidence as being a correct statement of tbe account of tbe plaintiff with Russell from July 29, 1897, to February 17, 1900, inclusive, to tbe same extent as tbe account books of tbe plaintiff might be received when proven according to law. Each of tbe appellants agreed in tbe guaranty “to accept a verified written statement o-f tbe account of Ralph A. Russell, as kept in tbe regular books of” tbe plaintiff, “as correct as between tbe” plaintiff and Russell, “and as competent and conclusive evidence as to tbe extent of my [bis] liability.” Tbe cases cited by appellants are to tbe effect that sucb agreement was binding and conclusive upon them. John A. Tolman Co. v. Clements, 98 Mich. 6, 56 N. W. 1038; John A. Tollman Co. v. Bowerman, 5 S. D. 197, 58 N. W. 568; John A. Tolman Co. v. Griffin, 111 Mich. 301, 69 N. W. 649. There is no dispute as to tbe amount due tbe plaintiff from Russell. Tbe verdict was properly directed in favor of tbe plaintiff.

By the Gourt. — Tbe judgment of tbe circuit court is affirmed.