McFarlane v. Wadhams

165 F. 987 | U.S. Circuit Court for the District of Eastern Wisconsin | 1908

QUARLES, District Judge

(after stating the facts as above). It appears that the plaintiff having sent to the Milwaukee Leasing Company proposals and specifications to construct a mill for a definite price for delivery by a certain time f. o. b. Denver, and Wadhams having, presumably on behalf of the corporation, accepted the proposal by his telegram and letter, a complete contract had been concluded thereby. In the absence of any stipulation as to time of payment, the contract price would be payable on delivery of the mill. Thereupon plaintiff, under date of May 17, 1906, notified Tarbet, the superintendent of the corporation, that he had commenced work on the order and hoped to complete same within the contract period. In the same letter plaintiff inquires how the corporation would like to make payments, as nothing has been agreed; states that he would prefer' to have Tarbet or Wadhams become personalty responsible. This was practically a request for a modification of the original contract by inserting specific terms of payment. Mr. Wadhams intimates in reply that, when the company bought a mill of another contractor, payment two or three weeks after the mill was in operation was deemed satisfactory, and that the same rule ought to be satisfactory. In the next sentence he says: “I will say that I will personally guarantee the payment of this bill by the Milwaukee Leasing Company.” Thus it will appear that the guaranty is based upon and coupled with certain terms of payment suggested by him. Instead of accepting this proposition in its entirety, the plaintiff in his reply annexed another and different condition, namely, that he ought to have $1,000 in cash when the invoice of the completed machinery was transmitted.

The law seems to be well settled that an acceptance to be available must be a complete and precise adoption of the proposition, without change or variation. The leading federal case is Eliason v. Henshaw, 4 Wheat. 226, 4 L. Ed. 556; which has been followed in Carr v. Duval, 14 Pet. 77, 10 L. Ed 361; Ins. Co. v. Young, 23 Wall. 106, 23 Wall. Ed. 152; Tilley v. County, 103 U S. 155, 161, 26 L. Ed. 374. See, also: N. W. Ins. Co. v. Mead, 21 Wis 474, 94 Am. Dec. 557; Baker v. Holt, 56 Wis. 100, 14 N. W. 8; Clark v. Burr, 85 Wis. 649, 55 N. W. 401; Mygatt v. Tarbell, 85 Wis. 457, 55 N. W. 1031; Salomon v. Webster, 4 Colo. 353; Gowing v. Knowles, 118 Mass. 232; Harlow v. Curtis, 121 Mass. 320; Baker v. County, 37 Iowa, 186. Therefore, if the guaranty required acceptance to make it a binding contract, the letter of the plaintiff falls far short of the legal requirements.

It appears from the correspondence incorporated in the complaint that plaintiff had suggested that he wished a personal guaranty of the contract price from defendant, or from Tarbet, the superintendent of the contracting corporation. Therefore the proposition emanated from the plaintiff, and compliance by either of the persons named would amount to an acceptance and a meeting of the minds of the parties, which is essential to the consummation of the contract. No further action on the part of the plaintiff would be required. In Davis v. Wells, 104 U. S. 159, 166, 26 L. Ed. 686, it is held:

“If the guaranty is made at tile request of the guarantee, it then becomes (he answer of the guarantor to a proposal made to him, and its delivery to or for the use of the guarantee completes the communication between them and constitutes a contract.”

The same doctrine is adhered to in Davis Co. v. Richards, 115 U. S. 527, 6 Sup. Ct. 173, 29 L. Ed. 480. See, also: Bank v. Goldstein, 86 Mo. App. 519; Nelson Company v. Shreve, 94 Mo. App. 523, 68 S. W. 376.

The delivery of the guaranty was complete when the same was deposited in the post office in Milwaukee by defendant. Tayloe v. Ins. Co., 9 How. 390, 13 L. Ed. 187; Patrick v. Bowman, 149 U. S. 411, 13 Sup. Ct. 866, 37 L. Ed. 790. This guaranty, therefore, having been executed in Milwaukee, became a Wisconsin contract. It is elementary that every written contract must be interpreted and construed by the lex loci contractus. By the terms of the Wisconsin statute of frauds, the guaranty was absolutely void because no consideration was expressed therein. We are therefore relieved from the delicate duty of determining the sufficiency of this guaranty under the peculiar phraseology of the Colorado statute, which has not been definitely construed by the court of last resort in that state.

The contention urged upon us by plaintiff’s counsel, that defendant was in fact the primary contractor, is not open to the plaintiff in this case. He has by his complaint chosen the corporation as the principal contractor, and has proceeded against Wadhams as guarantor. Such a change of front cannot be tolerated. Under the present record plaintiff must establish the liability'' of defendant as .a guarantor, or he must fail in his action:

Several other points were argued by counsel in their elaborate and able briefs, which it is unnecessary to consider in view of the conclusions which we havé reached.

It results that the demurrer to the complaint must be sustained, and judgment be rendered dismissing the complaint, with costs, unless by the November rule day the plaintiff amend his complaint, if so advised.