Coquillard v. Hovey

• Decision Date: 14 March 1888
• Citation: 37 N.W. 479,23 Neb. 622
• Parties: COQUILLARD v. HOVEY ET AL.
• Court: Nebraska Supreme Court

23 Neb. 622

37 N.W. 479

COQUILLARD

v.HOVEY ET AL.

Supreme Court of Nebraska.

March 14, 1888.

Syllabus by the Court.

The allegations of a petition in an action should consist of “a statement of the facts constituting the cause of action,” but not of the collateral evidence by which such facts are to be established; and where an action was brought upon a contract in writing set out in the petition, whereby the payment of all notes taken by defendants as the agents of plaintiff was guarantied, but the contract was so written as to render it doubtful whether the guaranty was of notes taken prior or subsequent to the execution of the guaranty, and where the petition contained the allegation that it was intended, by the parties to the contract, that the guaranty should apply to the notes taken subsequent thereto, and the petition also contained letters written by defendants to plaintiff tending to show such to have been the intention of the parties, it was held, that the order of the district court striking the letters out of the petition, upon defendant's motion, was correct.

While it is the province of the courts to construe contracts, yet where the meaning of a contract is obscure, and depends upon facts aliunde in connection with the written language, the question of construction may be one of fact for the jury. Bank v. Dana, 79 N. Y. 108.¹

In addition to the matter of the construction of a written guaranty of the payment of certain promissory notes, in an action thereon, the defendants pleaded, as a defense, want of diligence on the part of the plaintiff in the collection of the notes described in the petition, and by which they were discharged from their undertaking as such guarantors, it was held that, although the verdict of the jury might not be sustained by the evidence, as to the interpretation of the contract, there was sufficient evidence upon the latter branch of the case, under the instructions of the court as given, to sustain the verdict.

Error to district court, Lancaster county; POUND, Judge.

Action brought by Alexis Coquillard to charge the defendants, Hovey & Traphagan, upon a contract of guaranty. Judgment was rendered in favor of the defendants, and the plaintiff brings error.Ryan Bros. and G. B. France, for plaintiff in error.

Lamb, Ricketts & Wilson and Webster & Stewart, for defendants in error.

REESE, C. J.

An action was instituted in the district court, in which plaintiff, in his petition, alleges that on the 23d day of March, 1878, the defendants were partners under the firm name of Hovey & Traphagan, in Nebraska, and, as such firm, were engaged in selling agricultural implements, and that upon said date defendants executed, in writing, a guaranty of payment on all notes and evidences of indebtedness taken pursuant thereto by defendants as the agents of plaintiff. The sales were to be made, and the notes taken, in the course of the agency of defendants, to be then given by plaintiff to defendants upon the execution of said guaranty, and which guaranty was as follows:

“Know all men by these presents, that we, F. A. and C. M. Hovey and W. J. Traphagan, of the city of Lincoln, in the state of Nebraska, guaranty to Alexis Coquillard of the city of South Bend, in St. Joseph county, in the state of Indiana, payment of any and all notes, or other evidences of debt, received and taken by us for wagons sold by us for said Coquillard as his agents for the sale of the Coquillard farm and spring wagons. Witness our hands and seals this 23d day of March, 1878.

HOVEY & TRAPHAGAN, Agents for Alexis Coquillard.”

It was alleged that upon the faith of the guaranty of the payment of all notes to be taken by defendants in the course of their business, as agents of plaintiff, in the sale of plaintiff's wagons, the defendants became the agents of plaintiff; that previous to the execution of the contract of guaranty, and after the execution of the same, defendants wrote certain letters to plaintiff, which were set out in the petition, and which said letters, together with the contract referred to, were relied upon by plaintiff as fixing and defining the liability of defendants as such guarantors; that relying upon the guaranty by defendants of the payment of the notes taken by them, and to be thereafter taken, in the sale of wagons for him, plaintiffs sent wagons to defendants, which were sold, and, among others, the notes which are copied and attached to the petition were taken in payment therefor, and were returned by defendants to plaintiff, said notes being covered by the guaranty; that the notes are unpaid and worthless, and cannot be collected; that the notes provided that, if their collection was enforced by law, a reasonable amount should be allowed to the holder as attorney's fees; that, by reason of their non-payment, it has become necessary to enforce the collection by law. It is alleged that there is due on said notes the amount of principal, and interest thereon, less certain payments, together with attorneys' fees, and judgment is demanded for the sum of $750, and an attorney's fee amounting to 10 per cent. of the recovery.

Defendants appeared, and moved to strike out of plaintiff's petition the copies of letters incorporated therein. The motion was sustained, to which the plaintiff excepted, and the ruling thereon is now assigned for error. In this ruling of the court there was no error. The letters consisted of a part of the correspondence between the parties to the action, both before and after the execution of the guaranty. While, no doubt, competent evidence, and admissible as such for the purpose of showing the circumstances under which the agreement was executed, as well as to aid in its construction, yet the petition contained sufficient allegations of the purpose and intent of the parties, in entering into the contract, without the letters referred to. They were properly introduced and admitted in evidence, but unnecessarily incumbered the record as a part of the pleadings. They were no part of the instrument, upon which the suit was founded, and could only aid in construing it.

Defendants filed separate answers. The answers of F. A. Hovey and C. M. Hovey were substantially the same. They consisted of the allegations that a part of the notes referred to in the petition of plaintiff were not taken by the firm of Hovey & Traphagan, but that they were renewals of notes taken by said defendants by plaintiff, by which their time of payment was extended, and which was done without the knowledge or consent of defendants, or any of them; and that the original notes matured more than five years before the commencement of this action, and that the claim thereon was barred by statutes of limitation; that, at the time the notes mentioned in plaintiff's petition became due and payable, the makers thereof were solvent, and able to pay the same, and that collection could have been made by the ordinary methods, but that, by reason of the...