Cornish v. West

• Decision Date: 02 January 1901
• Citation: 82 Minn. 107,84 N.W. 750
• Parties: CORNISH et al. v. WEST et al.
• Court: Minnesota Supreme Court

82 Minn. 107

84 N.W. 750

CORNISH et al.

v.WEST et al.¹

Supreme Court of Minnesota.

Jan. 2, 1901.

Appeals from district court, Becker county; D. B. Searle, Judge.

Action by Cornish & Co. against John K. West and others. From an order sustaining demurrers to the complaint, plaintiff appeals. Reversed.

Syllabus by the Court

1. A contract for the construction of a creamery, executed by plaintiff as of the first part, and by all but two of the defendant subscribers as of the second part, construed.

2. Fifteen of the subscribers limited their liability by fixing the amounts of their several subscriptions, in all, $1,700. Eleven did not fix these amounts. The stipulated contract price was $3,000. Held, that the liability of the 11 last mentioned is several, not joint, and that each is bound to pay one-eleventh of $1,300.

3. Held, in an action to obtain a judgment and to enforce a lien upon the property, that the complaint stated a cause of action against all of the defendants. Cannon Donnelly, for appellant.

Harris Richardson and Jeff H. Irish, for respondents.

COLLINS, J.

This action was brought by plaintiff against the defendants, 27 in number, to recover a joint and several judgment against 11 for the sum of $1,300. It was based upon a written contract signed by all but two of the defendants, namely, the Detroit Light & Land Company and the Detroit Dairy Association; and, in addition to the personal judgment, a lien was demanded upon the real property on which the creamery mentioned and provided for in the contract was built. The agreed price was $3,000, and of this amount $1,700 had been paid, according to the complaint, to which a copy of the contract was attached and made a part. This contract was in the usual form of such instruments; the plaintiff being the party of the first part, and the defendants, except the Detroit Light & Land Company and Detroit Dairy Association, the parties of the second part; each defendant having been a subscriber thereto. The contract price was made payable in cash upon the completion of the creamery, or in lieu of all cash, at the option of the subscribers, payment might be made by a joint negotiable note or notes for two-thirds of the amount, one due in six months and one-third in one year after the creamery was completed. It was further agreed that, if the subscribers should organize themselves into a legal association, a negotiable note executed by that association would be accepted in lieu of joint obligations for the amount of the deferred payments. It was also stipulated that the plaintiff should build, erect, and equip the creamery as soon as 20 subscribers were obtained to the contract, and that, unless the required number of subscribers were obtained, the contract should be void. It was further provided that plaintiff should make vigorous effort to obtain 10 or more additional subscribers to the contract. There was also an agreement between the subscribers themselves. Among other things, they agreed to jointly sign all notes given in settlement of the indebtedness to plaintiff, or, at their option, each might pay the amount of his subscription in cash. This instrument was printed, except as to the amount to be paid for the creamery, the place where it was to be built, and the date of its execution; a blank form being used, as usual. It was executed in plaintiff's behalf by an agent, and then, following the details of the contract, the blank was divided into two parallel columns, in which signatures were to be placed. These columns, when the contract was considered complete, appeared thus:

Names of Second Party

Cash on completion of factory.

John K. West $100

Geo. D. Hamilton $100

Blanding-Norby Co. $100

Casper Wachman $100

John H. Smith $100

I subscribe for stock to the amount of $100

Wm. J. Bettingen.

I subscribe for stock to the amount of $100

E. F. Harris.

Nick Schroder $100

Snell Brothers $100

E. G. Holmes $100

This amount I agree to pay one-half in six months, and one-half in one year after factory is completed.

John K. West $100

Geo. D. Hamilton $100

E. F. Harris. $100

This amount to pay one-half four months after creamery is finished, $50. $50 one year from time creamery is finished. Six per cent. int.

H. R. Johnson.

S. G. Griffin $100

J. A. Teague $100

John Rahm $100

Turning over, at its end, the sheet or page on which was the foregoing, it appeared thus:

Names of Second Party.

A. M. Hoghaug.

John Paterson.

George Whipple.

Erastus Swick.

Fred Mix.

Frank Weitzke.

Wm. Disse.

J. F. Olson.

William Fisher.

Fred Weirand.

C. J. Rennacker.

So that the first or left-hand column upon the back of the sheet or page closely followed, and in fact was a continuation of, the first or left-hand column of the first page; the name A. M. Hoghaug following that of E. G. Holmes. The words ‘names of the second party,’ wherever they appear as above shown, were printed. The balance of the words and figures were in writing. At this point we call attention to the fact that opposite to the names of the 11 defendants last mentioned there was nothing to indicate the amount of their several subscriptions, as there was opposite the names of those whose signatures preceded, and it is these defendants against whom a money judgment is demanded. It stands admitted that the other defendants have placed a practical construction upon their contract, which has been satisfactory to the plaintiff, and has resulted in payment by each of these persons of the amounts set opposite their respective names,-$1,700 in all. The question in the case seems to be as to what amount, if any, was subscribed by the remaining 11 defendants. It is contended by their counsel that, so far as is shown by the complaint, they are not liable in any sum whatever, and, further, that in no event can their liability be held joint, and that at most it is a several liability for $100 each. It is very clear that, had...