Sanger v. Dun

47 Wis. 615 | Wis. | 1879

Cole, J.

We are all clear in the opinion that this case must be decided upon the receipts offered in evidence, which constitute the contract, and fix the rights and liabilities of the parties. These receipts are plain and distinct in their language, and no good reason was suggested on the argument why they are not valid and binding upon the parties executing them. True, it was said by the learned counsel for the plaintiffs, that the proof shows that Mr. Rockwell did not read the receipts, or know or understand that they contained a clause restricting the liability of the defendants. To this remark we answer in the words used by this and other courts when considering a similar question. It is not claimed that he was overreached or deceived otherwise than in the fact that he did not read or understand the contract which he signed; but that was his own negligence. It will not do for a man to enter into a contract, and, when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained. Fuller v. Madison Mutual Insurance Co., 36 Wis., 599; Upton v. Tribilcock, 91 U. S., 45; Wheaton v. Fay, 62 N. Y., 275; Germania Fire Insurance Co. v. M. & C. Railroad, 72 N. Y., 90; Hill v. S., B. & N. Y. Railroad, 73 N. Y., 351.

Of course we are considering a case relieved from all pretense of fraud or imposition, for nothing of the kind was used in procuring the contract. The only reason for claiming that the plaintiffs are not bound by the restrictive clause in the receipts is, that Rockwell did not read them or understand that they contained such a restrictive clause when the papers were executed. But if he failed to read or understand the contract, it was his own fault, and the plaintiffs alone are responsible for the omission. Therefore, under the circumstances, we all think that the contract is binding upon the parties, and it must be conclusively presumed that they understood its terms and assented to them. This being so, the question is, What was the extent or degree of responsibility assumed by the defendants in the transaction? A majority of the court are of the opinion that the defendants were only liable, under the contract, for gross negligence in the selection of the attorney to whom the plaintiffs’ account was sent for collection.

On the delivery of the account to the defendants, they gave the plaintiffs a receipt to the effect that the account was to be transmitted by mail, for collection or adjustment, to an attorney, at the risk and on the account of the plaintiffs —the proceeds to be paid over or accounted for to the plaintiffs when received by the defendants from the attorney. At the same time a receipt was signed by the plaintiffs in the books of the defendants, stating the amount of the account, and that the claim was to be transmitted by mail to an attorney, at the risk and for the account of the plaintiffs. Such are the conditions of the receipts which constitute the contract between the parties ; and the question therefore is, What liability did the defendants assume in the matter? On the part of the plaintiffs it is insisted, that, as the defendants held themselves out to the world as a collecting agency, when they received the account of the plaintiffs, they undertook either to collect it themselves, or remit the same to some suitable attorney in that part of the country where the debtors lived, to make the collection, and that they became responsible for the negligence or misconduct of the attorney whom they employed for that purpose.

It well may be that such would be the responsibility of the defendants, were it not for the restrictive clause in the receipts. But that clause, if any effect is given to it, clearly limits that liability; for it provides that the account is to be transmitted to an attorney for collection at the risk of the plaintiffs. Such being the case, we think the defendants are not liable for the acts or default of the attorney employed by them, unless in the selection of such attorney they were guilty of gross negligence; for it seems to us it was competent for the parties, by express contract, to limit the liability which the law would otherwise impose upon the defendants for the acts of the attorney employed by them to make the collection. We are not aware of any principle of law or public policy which condemns such a contract. In respect to the employment of sub-agents or substitutes, when provided for in the letter of attorney, Mr. Justice Stoey lays down the general rule to be: “ In such cases it is clear that the original attorney or agent will not be liable for the acts or omissions of the substitute appointed or employed by him, unless, in the appointment or substitution, he is guilty of fraud or gross negligence, or improperly cooperates in the acts or omissions.” Story on Agency, § 201. Notwithstanding the clause in the receipts, it is sought to render the defendants responsible for the loss of the money collected by the attorney; in other words, virtually to make the defendant's guarantors of the fidelity and integrity o'f such attorney, although there is not a particle of proof which tends to show that they wpre guilty of gross negligence in selecting him. We have not been referred to any case which carries the liability of an attorney or collecting agency to such an extent, under a contract like the one before us.

The ease of Bradstreet v. Everson, 72 Pa. St., 124, was much commented on by counsel on both sides as sustaining their respective positions; but, as we understand that case, it does not sustain the views of plaintiffs’ counsel. The court there decides, in effect, that a collecting agency which invites customers on the gi’ound that it has facilities for making distant collections, and selects its agents to do its business, is liable for collections made by its agents, when it undertakes the collection by the express terms of its receipt. But the court expressly say, if the agency does not intend to assume such a liability, it has it in its power to limit its responsibility by its receipt; and, as the receipt in that case contained no such restriction, the defendants were held liable for the collection made by one of its attorneys, to whom it had sent a claim belonging to the plaintiff.

The majority rest the decision expressly upon the restrictive clause in the receipt. Perhaps a greater liability might arise in the absence of such clause; but this is a point we need not consider, as we all agree that the restriction is legal and effectual. The majority think that the defendants are only responsible for gross negligence in selecting the attorney to whom the claim was sent for collection. That view is so in conflict with portions of the charge of the court below, which were excepted to, in regard to the rule of diligence imposed by the contract upon the defendants, that it mnst work a reversal of the judgment.

Therefore, without considering any other point, the judgment of the court must be reversed, and a new trial ordered.

By the Court. — So ordered.

Lyon and Taylob, JJ., dissented.