65 N.W. 691 | N.D. | 1895
The plaintiff is a corporation "engaged in manufacturing and selling machinery and supplies, with its home office at Chicago, 111. In 1893 the defendant Russell was the agent for plaintiff at Sheldon and Enderlin, in this state. The other defendants were guarantors of the due fulfillment of the agency contract. On the settlement of the business for that year between the principal and agent, it was found that Russell had received property belonging to plaintiff, amounting to $2,325.64, for which he had not accounted. A large part of the deficiency was on twine account. This action was brought on the written guaranty to recover the deficiency. Russell was not served, and does not defend. The defendants Aylen and Labbitt answer jointly. There was a trial to a jury. Verdict directed for plaintiff. Judgment on the verdict, and defendants appeal from the judgment on alleged errors of law occurring at the trial, and duly excepted to.
The uncontradicted, testimony shows that on February 16, 1893, two contracts were executed between respondent and Russell. One Stanton, who was a general agent for respondent, residing at Fargo, acted for the respondent in the transaction. One of these contracts appointed Russell agent for the respondent for the sale of twine alone, and specified in detail the manner in which that article should be sold, and at what prices, and the consideration that the agent should receive for selling the same. The other contract was more comprehensive. By its terms, Russell was appointed as agent for the respondent for the sale of “its harvesters, binders, reapers, mowers, twine, extra parts, trucks, bundle carriers, flax carriers, and other attachments, on commission.” Defendmt
We next inquire, then, whether or not this guaranty does legally include the agent’s liability for twine handled. Appellants allege a mutual mistake of the parties in leaving the word “twine” in the machinery contract and the guaranty contract, and they also allege that plaintiff and Russell, in order to obtain their signatures to such guaranty, represented to and agreed with them that the agency should not embrace the article of twine. We have examined the evidence carefully, and there is no suggestion anywhere that either of the appellants ever had any conversation or communication with respondent, or with any. agent of respondent, relative to Mr. Russell’s contracts, until long after this guaranty was signed. Each of the appellants testified that he had some conversation with Russell about the matter, and then each in turn was asked for his understanding of what the contract included. The answers were excluded, and on the plainest possible principles. They could not hold plaintiff to any understanding that they obtained from Russell alone. They had established no such mutual mistake as would permit them to contradict the written instruments by parole evidence. It is true that Russell swears that his understanding with Stanton was that the machinery contract should not include twine. It nowhere appears that this was ever communicated to appellants, but it would not avail, in any event. When the guaranty contract was
Mr. Russell testified that by arrangement with Stanton his compensation for handling twine in 1893 was to be used to reduce his existing indebtedness to respondents. Appellant’s counsel offered to show by each of the appellants that they did not know of this former indebtedness, and did not know of any arrangement by which Russell’s compensation was to be used to reduce such indebtedness. The offer was refused, and this .refusal is
The defense of payment remains yet to be considered. The evidence showed that Russell had turned over to respondent notes and accounts, as collateral to his indebtedness, amounting to nearly $2,000. It is urged that respondent was bound to show, as against these guarantors, that such collaterals had not been paid. We will assume that this position is correct. The general agent, Stanton, identified the sheet showing the' balance due on settlement with Russell in September, 1893, and testified that nothing further was paid on said indebtedness during the continuance of his agency. He was, however, superseded by one Stavely, in March, 1894. Mr. Stavely testified that there had been paid on the collaterals during his agency the sum of $165.33, exclusive of costs of collection and ho more. On cross-examination this witness testified that he gained his information of the fact that plaintiff had these collaterals from the books of the plaintiff, and from a list of notes signed by Russell, showing that they were
It is urged that the guarantors must be credited with the value of such securities, and are only liable to respondent for the balance then remaining. This is not the law. Under our statute (Comp. Laws, § 4412,) the party holding evidence of indebtedness of this character in pledge as collateral security cannot sell the same, but must proceed to collect it, if he wishes to realize thereon. Hence there would be no means of determining the value, except at the end of an execution in each case. But it is well settled that a creditor whose claim is guaranteed and also secured need not proceed against the security, but may at once sue the guarantor's, on default of the principal. Penny v. Manufacturing Co., 80 Ill. 244; Sigourney v. Wetherell, 6 Metc. (Mass.) 553; Forbes v. Rowe, 48 Conn. 413; Bingham v. Mears, 4 N. D. 437, 61 N. W. 808. On payment of the debt the guarantors will, of course, be subrogated to all the rights of the creditor on the securities.
We find no error in this case, and the judgment is affirmed.