9 Wis. 316 | Wis. | 1859
By the Court,
Without deciding upon the correctness of the numerous other instructions aske I by the defendant below, and refused by the court, we thi lk the judgment must be reversed for the refusal to give .Che seventh. The action is brought.to recover for alleged falyjand frauda lent representations made by the defendant, niary responsibility of King & Kellogg,by.wh were induced to trust them and lost their sentations relied on are contained in the le ant, of the date of September 21st, 1848, Poag & Co. It is very obvious that this I character; first, as containing representado' as an agreement of guaranty. The action and deceit, in making the representations, i:o the pecu-he plaintiffs The repre-the defended to Kent, of a double ct, and next, :ht for fraud
The substance of the seventh instruct] fendant is, that if the plaintiffs sold reliance upon these representations, b guaranty contained in the letter, then ed by the de-without any ¡ntirely on the puld find for
The counsel for the defendant in error raised the question whether the words in this letter amounted to a guaranty, or only to a mere offer to enter into a contract of guaranty by some subsequent proceeding like the case of Stafford vs. Law, 16 John., 67, and other similar cases cited. But we have no doubt that the words of the letter amount to, and were designed as a present undertaking of guaranty, needing only to to be acted oi> by any one for whom they were intended, with iter, in order to bind him. It is true, the fu-The letter says: “ I will guaranty,” &c. frequently used in instruments which are .t agreements, without any thing further be-the party using it. Thus, one man aother to let a third have goods, and writes, t he will pay for them.” This clearly is n.d obviously so intended. The future pted from the fact that the performance to be at some future time, and not with ing should afterwards be done in order king itself. notice to the ture tense is But this for: intended as ing necessar sends an ordi “ I will guara:] a good guara] tense is probaj of the underti the design that] to complete th
cases where it appears fróm the- con-not intended as a present guaranty, There are tract, that th
The counsel for the defendant in error also raised the question whether the plaintiffs could have maintained any action on the guaranty, inasmuch as the letter was addressed to Kent, Poag & Co., and to no one else. But we think the case of Lowry et al. vs. Adams, 22 Verm., 160, lays down the true rule upon this question. That case held' that where the defendant gave to a third party a general letter of credit not addressed to any one, but guaranteeing the payment of whatever goods he might purchase in New York, the plaintiffs having sold goods on the strength of the letter, could recover, although other parties had previously sold on the same letter. This was on the ground that the letter was evidently designed to enable the one to whom it was given to purchase from various dealers, and was equivalent to a separate letter to each, and that the real intent of the party should be carried out. That case, so far as this point is concerned, was very similar to this. The ofily distinction is, that there the letter was not addressed to any one while here; it was addressed to Kent, Poag & Co. But notwithstanding this, we think it discloses the same intent that the other did; that is, that the party to whom it was delivered should use it for the purpose of purchasing from various dealers in the city of New York. The letter introduces the bearer to Kent, Poag & Co.; it informs them that he is a stranger, and desires to purchase three or four thousand dollars worth of goods, and requests them to furnish him advice and assistance. This evidently contemplates that Kellogg might desire to deal with other parties be
We have no doubt therefore that if the plaintiffs parted with their goods on the strength of the representations, and these were false and fraudulent, they could maintain this action for the deceit. Or if they sold on the guaranty entirely, they could have maintained their action on that, if they gave proper notice. So that even admitting that if the plaintiffs below never could have maintained an action on the guaranty, it would render any clearer their right to maintain the action for the falseness of the representations, which does not seem very obvious, unless they relied and acted on the representations ; yet we do not think any such aid can be derived in this case, for the reason that they might have held the defendant on the guaranty; and if they neglected to give proper notice, that neglect certainly cannot place them in any better position, so far as this action is concerned, than they would otherwise have held.
But the counsel for the defendants in error further contended that the seventh instruction should not have been given, for the reason that they had a right to elect which action they
In speaking of the representations as false, we do so of course, only assuming them to be so, for the purpose of disposing of the question of law arising on this instruction, and not intimating at all, that in our opinion the evidence showed them to be really false. That with the other questions of fact, will be for the jury to determine.
The judgment must be reversed, and a new trial awarded.