164 Wis. 282 | Wis. | 1916
No complaint seems to be made but what tbe court submitted to tbe jury all material disputed matters of fact. Tbe questions raised are mainly questions of law, and are few in number. All will be treated which seem to merit consideration.
Tbe contract is ambiguous in several particulars, so tbe trial court, in reaching its conclusion, was obliged to construe the language thereof.
Did tbe contract permit tbe plaintiff to give tbe contractor tbe two promissory notes which were made payable January 1, 1914, in negotiable form? That is tbe first matter submitted. It is contended on tbe part of appellants that it did not and that, in so doing, there was a material prejudicial departure from tbe agreement, in that, thereby, respondent was rendered incapable of protecting itself, to tbe extent of
It is well settled that any material, substantial, and prejudicial variation of tbe terms of a contract, where performance by the contractor is insured by a 'surety, will discharge such surety, and that advance payments, not provided for in the contract, constitute such a variation, as, thereby, the corn tractor’s interest in performing his agreement is lessened and the surety has a right to the benefit of such interest and is presumed to rely thereon. Stephens v. Elver, 101 Wis. 392, 77 N. W. 737; Kunz v. Boll, 140 Wis. 69, 121 N. W. 601. But even advance payments will not discharge the surety if it affirmatively appears that, under all the circumstances, the departure from the agreement was immaterial and nonprejudicial. The principle must be kept in mind that a surety is so discharged only when the departure is material and prejudicial, and not otherwise.
If the giving of the two $5,000 notes in negotiable form was a departure from the contract, so as to amount, in effect, to an advance payment, as claimed, a pretty conclusive case of prejudicial variance would be presented.' But, as we construe the contract, it contemplated just such a circumstance. The agreement was to give promissory notes at the time they were given and payable at the time therein provided. The evident purpose was to aid the contractor in obtaining money to enable him to carry out his contract. The only way that could have been efficiently accomplished was by giving negotiable promissory notes, as was done. The provision was evidently inserted in the contract to enable him to have an equivalent of cash payments at the time of delivery of the notes. If it had been intended that nonnegotiable notes should be given, doubtless, an unmistakable stipulation on the subject would have been made.
We do mot overlook the fact that the contractor agreed to accept payment of the two $5,000 notes when due and the final amount of $3,000 on the contract in notes due $500
It is suggested that the $5,000 note which was agreed to be given when the first-floor stores were ready for occupancy was given before that time and that such circumstance constituted a prejudicial departure from the contract. Here again the language of the agreement is involved in some obscurity. While it was provided that $5,000 should be paid “when the first-floor stores were ready for occupancy,” it was also provided that “the said payment to be made by delivery to said party of the first part of the promissory note of said party of the second part, indorsed or guaranteed by said Julius Jacobson, said note to be made, executed, and dated on or before the time when the first-floor stores are ready for occupancy.” It is considered that the parties probably meant thereby that the payment should be made when the first-floor stores were ready for occupancy but that the note might, at respondent’s option, be given on or before that time. But if that be not so, it is considered that the giving of the note a short time before the first-floor stores were ready for occupancy was not a material prejudicial departure from the contract.
It is further suggested that the circumstance of respondent taking up the notes and giving a new one was an election under that clause of the contract permitting it to pay when due in cash or by securities acceptable to the contractor.. That seems clearly wrong. The contractor rendered himself incapable of taking the new securities in lieu of cash for the two $5,000 notes and, therefore, respondent had no opportunity to efficiently make an election. It gave the new note because it was compelled to do so, not because it preferred to pay them in cash rather than in new securities which the contractor agreed to take if respondent so desired.
■ It is further contended that error was committed in awarding damages to the extent of $4,087.50 on account of the
The contract very clearly, as we view it, obligated Utley to provide the $13,000 which respondent was compelled to raise. ' That was one of the obligations covered by the surety bond. Under the peculiar circumstances which the contract shows were brought home when the contract was made, the damages awarded for his failure to provide the $13,000 were such as should have been reasonably in contemplation by both parties when the agreement was made as a probable result of the breach of it, and so fall within the rule for assessing damages for such breaches. Guetzkow Brothers Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119; Bradley v. C., M. & St. P. R. Co. 94 Wis. 44, 68 N. W. 410; Hammond v. Sandwich Mfg. Co. 146 Wis. 485, 131 N. W. 1097. Those
Tbe next complaint made is tbat tbe court erred in not bolding as a matter of law tbat plaintiff and Utley made a complete settlement of all matters involved in tbe case, thereby discharging tbe surety.
It appears tbat on October 5, 1914, tbe last payment under tbe contract bad not been made. Then, Mr. Patterson, acting for Utley and others, and Mr. Jacobson, president of respondent, acting for it, bad some negotiations in respect to tbe differences between tbe two principals and, in tbe main, in regard to providing money to pay off lien claims on tbe building amounting to some $3,500. As a result of such negotiation, Patterson loaned respondent $3,500, which was used to provide for such claims, taking its note therefor and receiving a paper reciting that such note was received “for balance due under tbe contract and for extras” in constructing tbe building in question. There was much evidence given by Jacobson and Patterson in respect to this subject and evidence in relation to bow tbe bookkeeper, by Patterson’s direction, entered tbe matter on tbe Utley books. On tbe whole, tbe evidence tends, pretty persuasively, to show tbat, at tbe time tbe receipt was given, a full settlement of all tbe differences between tbe parties was intended, but, in view of tbe decision of tbe trial court, we are unable to reach the conclusion tbat error was clearly committed in submitting tbe matter to tbe jury. There was considerable evidence, not very satisfactory it is true, which, in a reasonable view, tends to show tbat tbe giving of tbe receipt was not for tbe purpose of a full settlement between Utley and respondent. It is needless to recite such evidence here. It has been read and reread and weighed in all reasonable aspects with tbe result tbat we are not persuaded to overrule tbe trial court. Tbe
It is a reasonable view of tbe evidence tbat tbe receipt was not intended to cover these matters; tbat it referred to tbe
A further and last complaint is made in respect to the rejection of some evidence offered by appellants as to a conversation between respondent’s president, Jacobson, and Utley, regarding extras. We are unable to see how that was prejudicial to appellants to the extent that the reception of the evidence might probably have changed the finding of tire jury on the question of settlement. There was no basis in the evidence for a recovery for extras. There was no such recovery. The evidence had no bearing, and is not claimed to have had, except to show that there were matters of difference between the parties at the time of the negotiations leading up to the giving of the receipt. There is no doubt but what there were such matters. The rejected evidence had reference to extras only and the receipt covered that. Whether it was intended to cover all other matters of difference then existing, or that might arise under the contract, is another question and one upon which, as before indicated, we are unable to reach the conclusion that the trial court clearly erred in submitting the matter to the jury.
By the Court. — The judgment is affirmed.