108 Ind. 334 | Ind. | 1886
The complaint in this cause charges that on the 27th day of October, 1874, William H. Forsyth, Columbus C. Bu^ns and Elias R. Forsyth executed a joint and
It was averred that thereafter, in the year 1877, on the-faith of the bond and in pursuance of its provisions, William-. H. Forsyth, for a valuable consideration, executed his four1 promissory notes, for amounts stated, to the Singer Manufacturing Company. Copies of the notes are set out. They are all payable at a bank in this State.
The complaint also charges, that pursuant to the above-mentioned bond, William H. Forsyth transferred and deliv-' ered to the obligee in the bond, a certain note against one-James H. Kersey, and that he (Forsyth) guaranteed the payment of the same to the plaintiff. It avers that the note so transferred and guaranteed is not collectible. It is alleged that all the notes are due and unpaid. Judgment is demanded as for a breach of the condition of the bond.
Neither the complaint nor the bond on its face discloses, unless by implication, any consideration whatever for > the execution of the obligation sued on. It does not appear, either' by averment in. the complaint or recital in the bond, that William H. Forsyth was indebted to the Singer Manufacturing Company at the time the bond was executed, or that there was any business transaction of any kind had, or under contemplation, between him and the company at the time the bond was delivered.
So far nothing appears except that in 1874 the obligors, signed and delivered the bond in suit to the Singer Manu
Answers were filed in which, substantially, the following facts are made to appear, viz.: That the sole and only consideration for the execution of the bond declared on was, that concurrently with its execution the Singer Manufacturing Company, by a written agreement, constituted William H. Forsyth its agent, for the sale of its sewing machines in the county of Decatur, in the State of Indiana, the company agreeing to furnish him for sale, and to be leased, machines and accessories, at a discount of 35 per cent, from its regular list price. The contract stipulated that the agent should account monthly for all machines sold or leased by him, either with cash, or the note of the purchaser, or by giving his own promissory note, and at the termination of,the agency return to the company all machines remaining unsold.
The answer alleges that this contract of agency continued until the 15th day of May, 1875, when it was superseded by a new contract, and that this new contract was superseded by a third, on the 3d day of October, 1876, which was followed by a fourth, dated May 13th, 1877. That finally on the 4th day of October, 1877, the agency was terminated, and a full and final settlement had between the company and its agent. This settlement, according to the answer, resulted in an- absolute sale by the company to William H. Forsyth of all the machines then unsold in the possession of the latter, and which had been consigned to him under the previous contract of agency. The answer further avers that all of the foregoing contracts, except that executed contemporaneously with the bond in suit, were made without the knowledge or consent of the defendants, and that the notes sued on were executed in consideration of, and in payment for, the property pur
Demurrers were overruled to all the answers which presented as a defence the facts above set out.
Upon issues made a trial was had which resulted in a finding and judgment for the defendants below.
It is contended’ here, that the demurrers to the answers, .above summarized, should have been sustained, and that the ■court should have granted a new trial, because the finding was not sustained by any competent evidence.
The position which the appellant’s learned counsel seek to maintain is, that since the bond in terms covers every indebtedness of William H. Forsyth, whether existing at'the time the bond was executed, or which might thereafter exist or be in any manner incurred, it was not competent to aver, and prove by parol, that the sole consideration of the bond was the contract of agency, which was executed concurrently with it, and that it was error to confine the obligation of the bond to indebtedness arising under and embraced by such contract.
The argument is, that to permit the bond to be so restrained is in violation of the elementary principle which forbids that a plain and unambiguous contract should be varied, contradicted or added tc by parol.
The rule that a formal written contract, which appears to be complete, will’be presumed to be the repository of the .final intentions of the parties, in regard to the subject-matter of the agreement, and that it excludes proof of any prior or contemporaneous parol stipulations which would contradict the writing, is abundantly settled, and should not, on account of its importance, be relaxed in any degree.
“ It would be inconvenient,” says Lord Coke, “ that matters in writing made by advice and on consideration, and
Obligations which parties have deliberately entered into, and put in writing, can not therefore be 'pared down, taken away or enlarged by parol evidence.
The rule, however, has no application to a case in which it' appears from the writing itself that it does not contain the whole agreement between the parties, nor does it operate to exclude proof of collateral or superadded agreements, provided the agreements so sought to be proved be not inconsistent with the writing. In such cases parol evidence of the collateral matter is admissible to the extent that it does not. .specifically add to, or contradict, or where it is necessary to-complete, the original contract. Trentman v. Fleteher, 100 Ind. 105, and cases cited; Chapin v. Dobson, 78 N. Y. 74 (34 Am. R. 512); Eighmie v. Taylor, 98 N. Y. 288; Jones Com. Cont., pp. 188-198.
This doctrine, carried, perhaps, on the facts of that case to-its utmost limit, was applied in Welz v. Rhodius, 87 Ind. 1 (44 Am. R. 747), where the authorities illustrating the rule are collected.
The inquiry, therefore, of primary importance in the present case is, does the written instrument, which is put forward' as the foundation of the action, appear to be complete in itself?'or, does not the suggestion necessarily arise out of the very terms of the writing, that it- is collateral to, and dependent upon, some engagement, either oral or written, between the obligee and principal obligor named in the bond?'
The rule is abundantly settled that where a collateral agreement, whether oral or written, constitutes a condition upon which the performance of a written contract depends, or-
Looking at the bond, it becomes at once apparent that it is a special contract or promise on the part of the guarantors to answer for the debt, default or miscarriage of William H. Eorsyth. Such a contract' must be in writing, and but for section 4905, R. S. 1881, which provides that “ The consideration of any such promise, contract, or agreement need not be set forth in such writing, but may be proved,” the bond under examination, considered by itself, would be void as being an agreement partly in writing and partly in parol. Gordon v. Gordon, 96 Ind. 134, and cases cited; Higham v. Harris, ante, p. 246; Hiatt v. Hiatt, 28 Ind. 53; Wilson Sewing Machine Co. v. Schnell, 20 Minn. 40; Simons v. Steele, 36 N. H. 73; Jones v. Post, 6 Cal. 102.
That the necessity for setting forth the consideration in the writing is thus dispensed with, does not, however, avoid the necessity of proving the consideration upon which a contract of guaranty or suretyship was made, much less does the statute, or any rule of law, deprive a surety or guarantor of, the right to aver and prove such consideration, or that it was made without any consideration. “ There must be a sufficient consideration for a promise to pay the debt of another as well as for any other promise, otherwise it will not be binding though reduced into writing. A guaranty must have a consideration to support it. If it is made at the time of the contract to which it relates so as to constitute a part of the consideration of the contract, it is sufficient.” Wood Statute of Erauds, section 102. Brandt Suretyship, etc, sections 6, 72 and 73; Langford v. Freeman, 60 Ind. 46; Bridges v. Blake, 106 Ind. 332.
Whatever we might have felt constrained to hold in respect to the failure of the appellant to aver and prove, that
The bond and the contract of agency, having been executed contemporaneously, are to be read together. They are necessarily related to, and, so far as respects the bond, dependent upon each other.
The extent of the engagement of the guarantors is to be measured by the terms of the contract which they signed, considered in reference to the nature of the transaction under contemplation at the time, and the agreement entered into, by their principal, for the due execution of which they agreed to answer. Weed Sewing Machine Co. v. Winchel, 107 Ind. 260, and cases cited; Burns v. Singer M’f’g Co., 87 Ind. 541; Grocers’ Bank v. Kingman, 16 Gray, 473.
The several liabilities which they engaged that their principal should “ well and truly pay,” must be confined to such liabilities as might arise under the contract which was executed concurrently with the bond, and without which the bond would in itself be meaningless, and unsupported by any consideration whatever.
This in no wise contradicts or varies the terms of the bond, but applies it to a subject-matter, and makes it intelligible, which otherwise it would not be.
It results that when the appellant terminated its contract
The appellants rely on Singer M’f’g Co. v. Hester, 2 McCrary, 417, and Domestic Sewing Machine Co. v. Webster, 47 Iowa, 357. These cases are to some extent distinguishable in their facts from the case before us. To the extent that they hold that the bond, and the contract of agency executed concurrently therewith, have no relation to, or dependence upon, each other, and are not to be construed together, we are constrained to the view that they are not in accord with the adjudications of this court, nor are’ they, in our opinion, in harmony with the weight of authority on that subject. This will appear from an examination of the authorities already cited.
There was competent evidence to sustain the finding. The judgment is affirmed, with costs.