Brill v. Hoile

• Decision Date: 13 December 1881
• Citation: 53 Wis. 537,11 N.W. 42
• Parties: BRILL v. HOILE, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

53 Wis. 537

11 N.W. 42

BRILL

v.HOILE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Portage county.

G. W. Cate, for respondent.

Walter R. Barnes, for appellant.

ORTON, J.

We think it was in effect proved, as well as found by the circuit court, that the plaintiff, before taking the order hereinafter considered, knew that Bratt & Bailey had assumed, on sufficient consideration, to pay all of the debts of the firm of Hoile & Bratt; Hoile having sold out his interest in the firm of Hoile & Bratt, and Bratt having assumed to pay all the debts of the firm, and Bailey having purchased such half interest, and the new firm having assumed to pay all of such debts, with the knowledge of the plaintiff. Hoile, as to the plaintiff, was thereafter a mere surety upon the liabilities of the old firm, and Bratt & Bailey principals. Gates v. Hughes, 44 Wis. 332;Collgrave v. Tallman, 67 N. Y. 95;Smith v. Sheldon, 35 Mich. 42. These being the relations of the parties, the plaintiff received from Bailey alone the following order, which the learned counsel of the appellant insists in itself operated as an extension of the time of payment of the original indebtedness, and thereby released the appellant, Hoile, as such surety. The order was as follows:

“STEVENS POINT, February 9, 1880.

Mr. H. D. McCulloch: Pay I. Brill, or order, $147.31 out of the H. Bick draft, when paid.

+------------------------+
                ¦[Signed]¦D. C. BAILEY.” ¦
                +------------------------+
                

In explanation of this order it is not very clear, but inferable from the evidence, that McCulloch was an officer of the bank, and held the draft of either Bratt & Bailey, or of Bailey alone, on one H. Bick, for lumber shipped to him by them, and that this order was on that particular fund when it should come into the hands of McCulloch, or into the bank, in payment of the Bick draft. It does not appear in evidence that Bratt knew anything about this transaction, except what was told him by Bailey, which, as the statements of Bailey testified to by Bratt, ought to have been ruled out as hearsay testimony; and there is no evidence of any contract or understanding between Bratt & Bailey and the plaintiff, in relation to this order, other than appears upon its face. There was a mere mention, by one of the witnesses, that the plaintiff gave Bailey a receipt for the order, but the receipt itself or its terms did not appear.

This order was payable out of a particular fund, and the time of the payment is not fixed, and it is conditional and not payable absolutely, and is, therefore, not negotiable as a bill of exchange. Story, Bills of Ex. §§ 46-50. There can be, therefore, no inference from the paper itself that it was taken in payment of the original debt, as would arise from the taking of a negotiable bill of exchange or a promissory note, or that the right to recover the original debt was suspended until the credit on the bill or note has expired. Story, Bills of Ex. § 419; Wehlberg v. Fisher, 24 Wis. 607. This order, then, on its face, does not extend the time of payment, and there was no agreement outside of the order that it should be taken in payment, or that it should extend the time of the payment of the original debt, and it is...