Gillman v. Henry

• Decision Date: 22 November 1881
• Parties: GILLMAN AND ANOTHER, EX'RS, v. HENRY.
• Court: Wisconsin Supreme Court

53 Wis. 465

10 N.W. 692

GILLMAN AND ANOTHER, EX'RS,

v.HENRY.

Supreme Court of Wisconsin.

Filed November 22, 1881.

Appeal from circuit court, Iowa county.

This is an action upon a promissory note executed by the defendant, Henry, July 20, 1880, wherein he promised to pay, three months thereafter, to the order of Robert George, the above-named testator, $5,000, with interest at 8 per cent. The answer, in effect, alleges that a few months prior to the making of the note the defendant undertook and agreed with George to use his best endeavors to sell a certain tract of land, situated in Colorado, belonging to George, and which he represented to be valuable coal land, for a commission to be allowed therefor on the sale; that after a considerable negotiation with sundry parties the defendant succeeded in negotiating a sale through J. Allen Long, who agreed to purchase the land for the Philadelphia & Pittsburgh Coal Company, for whom he was acting, for the sum of $27,500, net, over and above the commissions which said Long proposed to charge the company, which proposition George and the defendant agreed to accept, with the understanding and agreement that the defendant should have for his commissions out of such purchase price the sum of $3,000. Upon closing up the negotiations it was found that Long could only pay down $22,500, and that he desired a credit of three months for the other $5,000. Thereupon, and for the better security of George, and in pursuance of the understanding and agreement of Long, George, and the defendant, Henry, George and his wife conveyed the land to Henry, and he executed the note in question and a mortgage back to George upon the same land, and delivered them to George, and at the same time Henry executed a deed of the land to the Philadelphia & Pittsburgh Coal Company, subject to the payment of the said $5,000 note and mortgage so given to George, and delivered said deed of the company to Long, who, at the same time, paid over to Henry the said $22,500, and Henry thereupon paid over to George $19,500 of the amount so received, and retained the other $3,000 as his commissions on such negotiations and sale. It is also alleged in the answer, in effect, that at the time of making the deeds, note, and mortgage “there was made the further explicit and distinct agreement between the said plaintiff [George] and this defendant, verbally, and well and clearly stated and understood between them, that the $5,000 note was given without any consideration whatever paid to this defendant therefor; that in no event whatever was the said plaintiff [George] to call on this defendant for payment of any part thereof, but the said plaintiff was to look solely to the said Philadelphia & Pittsburgh Coal Company, and his security by mortgage on the said coal land, for payment of the said note; and if the said note was not paid when due, then and in that case the said plaintiff [George] promised and agreed that this defendant should and was to have the management, control, and collection thereof; and said note was to be collected by foreclosing the said mortgage and selling the said land described therein.”

It is also, in effect, alleged in the answer that George made certain misrepresentations in regard to the land, and that George had sued him on the note because he was fearful the company would set up damages by reason of such misrepresentations if he had proceeded to foreclose the mortgage; and that George was seeking to collect the note of him, the defendant, “in contempt of and violation of his said agreement,” so “verbally” made at the time of executing the papers. On the death of George the action was revived in the name of his executors, who demurred to the answer “because said answer, on its face, does not state facts sufficient to constitute a defence.” From the order overruling the demurrer this appeal is brought.

TAYLOR, J., dissents.--

[STATE REP.

Wilson & McIllhon, for appellants.

Henry & Smith, for respondent.

CASSODY, J.

It is a well-sttled rule of this court that “all contemporaneous agreements between the same parties, and in relation to the same subject-matter, are to be taken together and construed as one instrument, for the purpose of determining the character of the transaction, and the intention of the makers.” Norton v. Kearney, 10 Wis. 448. Thus it has been held that “a chattel mortgage and a written agreement to govern the same subject-matter between the parties, executed contemporaneously, must be treated as one contract.” Blakeslee v. Rossman, 43 Wis. 116.

This being the law, it is very evident that the deed from George to Henry, and the note and mortgage from Henry back to George, and the deed from Henry to the company, must “be taken together and construed as one instrument for the purpose of determining the character of the transaction and the intention of the makers.” Thus taken, they seem to cover the whole transaction, and leave no room for doubt, uncertainty, or ambiguity with respect to it. By his deed George parted with all title to the land, supposed to be of the value of $27,500, and vested the same absolutely in Henry. That was a full performance and completion of the transaction so far as George was concerned. Henry executed the $5,000 note and mortgage back to George, and delivered the same to him, together with $19,500 of the money received from Long, and retained the other $3,000 received from Long as his agreed commissions, and conveyed the land to the company, subject to the mortgage, as directed by Long. This closed the contract so far as Henry, Long, and the company were concerned, and left nothing to be done by them except the payment to George of the note and mortgage according to the agreement therein contained. By that written agreement Henry promised to pay the amount of the note to George. That Henry executed and delivered to George that written agreement, as representing so much consideration for the land, is admitted by the answer. It is there claimed, however, that such was not the intent of the parties, because they, at the same time, verbally agreed that George should “in no event whatever” call upon Henry “for payment of any part” of the note, but should “look solely to the said Philadelphia & Pittsburgh Coal Company, and his security by mortgage on the said coal land, for payment of the said note.”

Thus the oral agreement sought to be established is squarely in conflict with the written agreement, which is admitted. The note representing the debt “is the principal thing,” and the mortgage is collateral and incident to it. Mathews v. Wallwyn, 4 Ves. Jr. 129; Croft v. Bunster,...