Taylor v. North

79 Wis. 86 | Wis. | 1891

Lyon, J.

This appeal is from an order overruling a demurrer to tbe complaint. Tbe case in all its essential particulars, with a single exception, is like that of Taylor v. Coon, ante, p. 76. Tbe defendant was a signer of tbe •agreement in suit in that action, and tbe present action is upon tbe same agreement. Tbe complaints in tbe two actions, with tbe exception mentioned, and tbe demurrers thereto, are substantially alike, and tbe rulings in that case :are applicable here. Tbe exception above mentioned is that, while in tbe Coon Case tbe complaint alleges that tbe plaintiff was indorser of tbe paper of tbe corporation, and was liable thereon as such when tbe agreement was executed, in this case it is alleged that, after tbe agreement was executed, and on tbe faith of it, plaintiff became liable “ as indorser or otherwise ” on notes made for tbe benefit of tbe corporation to tbe amount of $19,000, which amount .the corporation has bad tbe full benefit of and has failed to pay such notes. It is claimed on behalf of defendant that, as to obligations incurred after tbe execution of tbe agreement, tbe indemnity therein is confined to widorsers of tbe notes of tbe corporation, and tbe averment that plaintiff became liable on its notes as “ indorser or otherwise ” is a defective averment of tbe defendant’s liability. We do not adopt this view. Tbe agreement is that tbe signers thereof will indemnify tbe stockholders then liable upon tbe company’s paper, or who should “ thereafter become so, by in-dorsement or otherwise.” Although tbe words “ or otherwise ” are dropped from other portions of the agreement in which “ indorser ” is mentioned, there is nothing therein which affords any grounds for believing the signers intended to restrict their liability to those persons only who had indorsed the company’s paper by writing their names in blank across the back thereof. The rules of strict construction, which a surety may successfully invoke, do not go to this extent. Such a construction of the instrument would be hypercritical. We think the agreement gives indemnity to any stockholder who became liable to pay such corporate obligation, in any of the modes known to the law, and who pays the same. Hence, in this respect, we conclude the complaint is sufficient. Rut the complaint fails to allege that the plaintiff has paid the obligations upon which he had become liable, or has suffered loss. Because of such failure the demurrer should have been sustained. The demurrer is to an amended complaint. It was urged in argument that such amended complaint was improperly allowed to be filed, and that the demurrer should have been sustained for that reason. The point is not well taken. On this appeal we cannot go back of the pleading to which the demurrer is interposed to inquire whether it is regularly in the case.

By the Court.—The order of the circuit court overruling the demurrer to the complaint is reversed, and the cause remanded, with directions to sustain the demurrer.