111 Mich. 301 | Mich. | 1896
This is an action on a contract of guaranty which reads as follows:
“Witness my hand and seal this 11th day of September, 1893, in the village of Hopkins and State of Michigan.
“ Ransom Reed.
“M. Francis Griffin.”
It appears that plaintiff company is a wholesale grocer, and that, in the summer of 1893, one Joseph P. Yisner, then a resident of Grand Rapids, sought employment with the plaintiff, and negotiations for his employment by the plaintiff were pending at the time of the execution of this guaranty. Subsequently, on the 12th day of January, 1894, the plaintiff employed Yisner as salesman to solicit orders for goods, he agreeing to expend his entire time
The case turns upon a construction of the contract of guaranty. Two questions arise in this connection: First, is the contract to be construed as applying only to a single contract' entered into between the parties, which should thereafter be put in form, and, when put in form, read into the contract of guaranty, and be no longer subject to change or modification in any respect ? And, second, is the contract of guaranty to be construed as a guaranty of performance by Yisner of a contract of employment only? We think the first of these questions should be answered in the negative, and the latter in the affirmative. The language of the agreement appears to be free from ambiguity. Defendants undertake to guarantee the payment to plaintiff of any and all moneys collected by Yisner for account of Tolman Company, and for all moneys which Tolman Company shall from time to time advance to Yisner, and any and all indebtedness now due, or which may hereafter become due, Tolman Company, in excess of the amount due said Yisner, as per the present or any future agreement between Tolman Company and Yisner. Here is a continuing contract of guaranty, into which the parties have seen fit to enter without demanding that the contract between their principal and his employer shall be made a part of the agreement, and in which they have further expressed their willingness to be bound by any future agreement between Tolman Company and Yisner. It is contended by defendants that, when once a contract is agreed upon between the parties, this exhausts the power to enter into future agreements. We think this is too narrow a construction of the language employed, and is clearly not what was meant. The court was therefore in error in the instruction upon this branch of the case, to the effect that any change in the contract
Plaintiff further makes the broad contention that this contract should be construed as applying to any future contract, and any indebtedness from Visner to the plaintiff, and insists that there is nothing in the wording of the contract which justified the court in limiting the indebtedness of Visner to plaintiff to such indebtedness as might grow out of a contract of employment as salesman. We think the court was entirely right in its construction in this respect. The declaration sets forth, what we assume to be the fact, that this agreement was given in view of the contemplated employment of Visner by plaintiff as a traveling salesman. Not only this, but the language of the agreement implies that the relation of employer and employe is the one contemplated. This guaranty is one of payment of any and all moneys collected for and on account of Tolman Company, for all moneys which they may from time to time advance to Visner, and any and all indebtedness now due, or which may hereafter become due, in excess of the amount due said Visner; implying that, under the agreement contemplated, Visner would have counter-charges against the claim of plaintiff. We think the broader language should be construed in connection with this, and that .the agreement is to be interpreted in the light of the situation of the parties and the subject-matter with reference to which it was evidently given. It would be a great stretch to say that these guarantors would become liable upon a sale of a steamboat by plaintiff to Visner; and, so far as the record shows, an obligation for merchandise to be used in an independent business was as foreign to anything in contemplation of the parties to this guaranty as would have been a transportation business.
We think the court was also right in the instruction as to the right of defendants to show that this verified state
For the error pointed out, the judgment will be reversed, and a new trial ordered.