Weed Sewing Machine Co. v. Oberreich

38 Wis. 325 | Wis. | 1875

Lyon, J.

We think the averments of the complaint sufficiently show that, although the plaintiff’s agent, Thomas, is named in the bond as obligee, the plaintiff is, and from the inception thereof has been, the owner of the bond and the real party in interest, and may maintain an action thereon. in its own name without alleging an assignment from Thomas. But we do not care to discuss this proposition at the present time, because we have reached the conclusion that, as to the sureties, the complaint is fatally defective.

It is not disputed that if the time of credit was extended by the plaintiff without the consent of the sureties, on anjr sum which had become due for machines sold to Walther under the contract between him and the plaintiff, the sureties were thereby discharged from liability on the bond for such sum. We think the complaint shows on its face that there has been such an extension of credit in the present case; and there is no averment that the sureties consented thereto.

It is alleged in the complaint that there was due the plaintiff, July 15, 1871, from Walther, the sum of $329.56 on account of machines sold and delivered to him by the plaintiff, and that the latter took the note of Walther for that amount, dated on that day, and payable three months after date. The note also, provides for the payment ox ten per cent, fees if the same shall be collected by attorney. The breach of the condition ot the bond assigned in the complaint is ¿he nonpayment of the note (except $100) at maturity, by Walther, or within thirty days after notice to him of such default, and also the nonpayment of the stipulated attorney’s fees. The complaint contains no averment that the contract between the plaintiff (or its agent Thomas) and the defendant Walther provided for a credit of three months for the price of machines sold and delivered to the latter, or a credit for any other specific time. On the contrary, the fair inference is that no such credit was stipulated for, because the complaint shows that the price of machines so sold and delivered after June 29th, and on or before July loth, was due on the latter day.

Neither is it stated in the complaint that the note was given merely as collateral to the original debt, or under circumstances which left the plaintiff at liberty to bring an action on such original debt before the maturity of the note. From the fact that nonpayment of the note, and not of the original debt, is assigned as the breach of the condition of the bond, the inference may fairly be drawn that the time of payment of the original debt was extended by the note, and that it was so intended by the plaintiff and Wcdiher.

We are therefore unable to say, in view of the averments of the complaint, that the plaintiff could have maintained an action for the money which was due July loth, before the maturity of the note which it received therefor ; and because we are unable so to hold, the case is entirely different in fact and principle from that of Paine v. Voorhees, 26 Wis., 526, which is much relied upon by the learned counsel for the plaintiff.

Inasmuch as it is not claimed that the sureties consented to any extension of credit, the complaint in its present form fails to state a cause of action against the sureties ; and the demurrer thereto should have been sustained.

By the Court. ■— The order overruling the demurrer is reversed, and the cause remanded for further proceedings.

RyAN, C. J., took no part in the decision of this cause.