Minneapolis Harvester Works v. Smith

30 Minn. 399 | Minn. | 1883

Berry, J.

As we construe the contract between the parties to this action, the defendants, by the 5th article, agree to indorse their guaranty upon every machine note turned over to plaintiff which they have taken from any vendee of a machine whose responsibility, reputation and property condition are not such as the article specifies, and who has not executed the property statement therein mentioned. It is for the plaintiff, at the time when a note is being turned over to it, to ascertain and determine for itself whether the facts in regard io a particular note are such as to entitle it to require the guaranty, and whether it will require one or not.. If it determine not to insist ■on one, that is the end of its right to do so under the contract. If the ■defendants guaranty a note, their liability is upon'the guaranty. If the plaintiff accepts a note without a guaranty, then the measure of defendants’ contract liability is exclusively fixed by the 23-per-cent, clause of the 6th article, which applies to all uncollectible unguar-.antied notes, whether the maker was solvent when they were made, or not. This clause, being a special provision for a particular case, •controls any general provisions, like that of article 13, the words of which might otherwise embrace a liability upon the part of defendants for the failure spoken of in article 5.

From this our construction it follows that as respects a note accepted by plaintiff without a guaranty, the plaintiff’s exclusive remedy ex contractu, — that is to say, upon the contract, — must be sought under the 23-per-cent, clause of article 6.- If, instead of pursuing this remedy, the plaintiff seeks to charge the defendants for fraud in taking and turning over an unguarantied note to it, and in the representations and inducements by which its acceptance of the same was accomplished, that remedy is not upon the contract — that is, ex contractu — but is outside of the contract, and for fraud, and, therefore, ex - delicto. The remedy sought in the present action is of the latter character, and hence the action was properly held by the trial court to be purely ex delicto.

The learned judge who tried the case below appears to have been of opinion that, because the action was in form ex delicto, the plaintiff, for that reason, could not recover as in an action ex contractu, even if, by rejecting a portion of the pleadings, enough would remain to constitute a statement of a cause of action ex contractu. To this opinion we are not prepared to assent. But in this case, upon the construction which we have given to the contract, the pleadings did not embrace a statement of a cause of action ex contractu, that is, a cause of action under the 23-per-cent, clause of article 6. Indeed, the plaintiff expressly disclaims any such state of the pleadings. The case is then one in which the action is purely and exclusively ex delicto — no cause of action other than one of that description being stated in the pleadings, and no relief except such as is appropriate to such an action being embraced within the issues. The court below having found that the plaintiff had failed to establish its cause of action ex delicto, judgment was properly ordered for defendants.

Order affirmed.