249 F. 691 | 6th Cir. | 1918
(after stating the facts as above). [1] When we read the contract of January 10, 1907, in connection with the admitted circumstances, we think it must be construed according to plaintiff’s theory. There are considerations tending in the opposite direction, but, upon the whole, they are overbalanced. Chief among these is the fact that through this construction Manheimer finally realizes the $3,153, and perhaps further sums, contingently credited to him, but which, as events happened, he would not have been entitled to if the old arrangement had continued unchanged. Assuming, as is entirely clear, that, under the old arrangement, this credit to plaintiff of $3,153 would have been rightfully canceled when the South Carolina loss occurred, its cancellation would still seem to be rightful if the extent and character of the plaintiff’s liability had remained un
“Each, of the undersigned * * * agrees to make good to the Ulman Company * * * one-half of any loss which may be sustained by said company ón any of the accounts transferred to it for merchandise shipped by Ulman Company to our respective customers.”
And again:
“Each of the undersigned * * * has deposited * * * the respective shares of stock owned by each * ;;; * as security for the performance by each of his agreement ...... * to make good any of said losses for which we are respectively liable.”
Not only does the use of the word “respective” and “respectively” import the idea that each associate was contracting only with reference to the losses connected with his own customers; but, unless this is> the meaning of the contract, there is no satisfactory force in the words “each of the undersigned.”
It is argued that this language was adopted so as to make the contract liability several as well as joint; but this conclusion presupposes that otherwise existing merely joint liability which the word “respective” negatives. When several individuals are to share in a liability of which each has created a part, and it is desired that all should be liable, and that each should be liable for the whole, it is the customary
We may concede that if these words were to be considered by themselves, without knowing the situation to1 rvliich they were applied, there might be enough of ambiguity, so that the construction we have adopted would be compelled to yield to the effect of a practical construction by the parties; but the trial court took the view that there was such an ambiguity, and submitted to the jury the effect of the practical construction which defendant alleged and plaintiff denied, and the verdict of the jury has the effect of a finding that the plaintiff was right in liis denial. The subject of interpretation through practical construction is therefore eliminated from the case; and when wo hold, as we do, that as matter of law the liability was distributive, and not in gross, all the error alleged on the subject of evidence to explain or interpret becomes immaterial.
We find no prejudicial variance between the contract of guaranty of payment made with the corporation, as alleged in the petition, and the contract of guaranty against loss made with Ulman, as shown by the proofs. Ulman was, in this respect, a trustee for the corporation. There was only this one written contract between the parties, and the defendant was never misled or prejudiced in the least.
“If the Jury should find that the parties to the writing of January 10, 1907, sued on in the within action, have themselves construed the writing as not the contract between them, but subsequently entered into an agreement, whether verbally or by conduct, different from that set forth in the contract, then I charge you will adopt and give effect to the later agreement.”
This was refused. ' If it had distinctly presented the issue raised by the amended anwer, there would be force in the contention that the refusal was error, though it is not clear how this new oral agreement would have escaped the statute of frauds. However, it is not certain that the request was aimed at this defense. The same acts and words relied on to’ show the new contract were relied on also to show the practical construction of the old; both the testimony and the second request had this double aspect; the court seemed to regard this request as directed to1 the subject of practical construction and charged fully upon that subject; and neither by exception nor by a further request was the trial court advised that this request was intended to present specifically the defense of a new and independent contract. We conclude that fairness to the trial court requires that a point of this kind should be clearly and distinctly brought to1 his attention, and that error cannot be predicated solely upon the refusal of a request which covers up as much as it discloses of the contention afterwards made.
The judgment is affirmed.