New Home Sewing Machine Co. v. Simon

113 Wis. 267 | Wis. | 1902

Maeshaxi., J.

The principal questions governing this-case were settled on the former appeals reported in 104 Wis. 120, and 107 Wis. 368. Very little need be said now. No-new question is presented, as it seems, except in respect to-some small matters of detail in the trial. The main contention of appellant’s counsel is that what happened at the meeting between plaintiff’s agent and respondent rendered the occurrences between the latter and Holbek when the guaranty was signed immaterial; that respondent, at such meeting, in-effect re-executed the paper and gave it to the agent unconditionally. If the evidence sustains that contention, certainly a verdict should have been directed in appellant’s favor; but it does not. There is no need to refer to the evidence in detail. It is sufficient to say that it tends to show that appellant’s agent visited respondent to obtain his signature to the-property statement; that appellant had not then accepted the-guaranty or furnished any goods on the faith of it; that respondent took the paper into his hands, signed the property-statement as requested, and handed the instrument back, to the agent, informing him that it was conditionally signed and was not to be binding as a contract of guaranty till signed by another surety. The best that can be said for appellant is that the evidence would permit, reasonably, a finding either way as to whether, at the interview between respondent and appellant’s agent, the former waived the condition imposed when he signed the paper and left it with Holbek, so that it was a question for the jury whether there was such a waiver or not.

Counsel insists that it was the duty of respondent, when the paper was placed in his hands hy the agent, to have retained it, or else, in handing it back to the agent, to have distinctly stated that no goods should be furnished to Holbek on ■the strength thereof till another signer should be obtained; and that his failure to do¡ either was a waiver of the condition with which the paper was signed and left with Holbek. That •question having been twice heretofore decided in favor of respondent, it seems that it may well be considered closed •beyond hope for reconsideration. On both of the former appeals it was distinctly held that if, at the meeting between respondent and appellant’s agent, the latter was informed that •the paper was conditionally signed, that was sufficient to charge appellant with notice that it was not to be a binding •obligation upon respondent in advance of compliance with the condition. A failure to follow the decision of the court in that regard upon the second trial was the primary reason why a third trial was made necessary. On the first appeal this language was used in the opinion:

“The fact that the agent notified defendant that plaintiff would extend credit to Holbek did not call for any protestation from him that he would not be bound by the letter of guaranty. When knowledge came to plaintiff, if it did so come, that the letter of guaranty had been wrongfully delivered, it had no right to ignore the fact. It proceeded thereunder at its peril, and, unless defendant is guilty of some act that would amount to an estoppel, is without remedy.”

Tbe situation now is tbis: On tbe second trial tbe jury were instructed tbe same as counsel for appellant now contends tbe law to be as regards the duty of respondent at tbe time appellant’s agent presented tbe paper to him. A third trial was made necessary by reason thereof. He now says that compliance by tbe trial court with tbe decision of tbis court upon the former appeals was error and that a fourth trial should be granted. Tbe mere statement of the proposition sufficiently answers it against appellant’s contention. Tbe court is powerless to review the question presented even if there is any reasonable doubt of its correctness,, and there is none. We are not immindful of tbe new element brought into tbe case on tbe last trial, of tbe signing of tbe property statement. That did not change tbe situation. Tbe question was still for tbe jury as to whether respondent then notified the appellant’s agent of tbe condition with which tbe contract of guaranty was signed and left with Holbek, and whether be expressly or by implication waived such condition.

Error is assigned because tbe court struck out tbe evidence of appellant’s agent as to some conversation be bad with Hol-bek before be visited respondent on the occasion of tbe latter’s signing tbe property statement. We are not able to perceive bow such conversation, in tbe absence of respondent, was competent as against tbe latter. What Holbek said to tbe agent was mere hearsay as regards tbe issues in tbis action, and what tbe agent said to Holbek was certainly immaterial. Tbe conversation bad no legitimate bearing upon what actually occurred between tbe agent and respondent.

Error is «assigned because tbe court did not fully instruct, tbe jury on all tbe material issues. No subject is definitely pointed out upon which tbe court did not sufficiently instruct tbe jury, except one as to which tbe evidence was stricken out on appellant’s motion before tbe fcause was submitted to tbe jury. No reason is perceived for complaint upon appellant’s part in any event, because no instructions were requested by its counsel, and no complaint is made but that the instructions given were proper so far as they went, except one to the effect that the burden of proof was upon plaintiff to satisfy the jury that the condition upon which the guaranty was originally signed was subsequently waived. It is a sufficient answer to that to say that the court was bound to so instruct the jury, — to conform to the decisions of this court on the former appeals. Moreover, it is elementary that waiver, when put forward as a ground of action or as a defense, is affirmative matter to be established by the party alleging it. The ease appears to have been carefully tried in strict conformity to the law as previously settled for the purposes thereof.

By the Court. — Judgment affirmed.