Lawton v. Waite

• Decision Date: 16 May 1899
• Citation: 79 N.W. 321,103 Wis. 244
• Parties: LAWTON v. WAITE ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 244

79 N.W. 321

LAWTON

v.WAITE ET AL.

Supreme Court of Wisconsin.

May 16, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Frank B. Lawton against E. A. Chilton and others to recover on a contract. From an order overruling a demurrer to the complaint, part of defendants appeal. Reversed as to defendants Alexander McWhorter and J. A. White.

Appeal from order overruling demurrer to a complaint, which alleges that the defendants E. A. Chilton, as principal, and J. E. Chilton and R. S. Carr, as sureties, entered into a contract with the United States, whereby it is agreed that they will carry the mails from the stations to the post office in the city of Milwaukee from July 1, 1895, to June 30, 1899, in a safe and secure manner, free from wet or other injury, in wagons of a style and design to be prescribed by the postmaster general, and, by the fourth clause, will be accountable and answerable in damages to the United States or any person aggrieved for faithful performance by the said contractor of all duties and obligations herein assumed, or which are now or may hereafter be imposed by law in this behalf; and, further, to be so answerable and accountable in damages for the careful and faithful conduct of the person or persons who may be employed by said contractor, and to whom the said contractor shall commit the care and transportation of the mails, and the faithful performance of the duties which are or may by law be imposed upon such person or persons in the care and transportation of said mails. The same paragraph also prohibits the employment of subordinates under 16 years of age, of bad morals, or who have not taken the oath required by law. The fifth paragraph requires contractor to discharge any driver or other employé when required by the postmaster general, and also prohibits the carriage of parcels except as contained in the mail; and the ninth: “To convey, whenever requested so to do, one railway post-office clerk, a substitute, or a messenger, on the driver's seat of each wagon.” A series of general stipulations and agreements follow, providing for changes in service, and that for any failure in certain details of carrying of the mails, “or for any other delinquency or omission of duty under this contract,” the contractor shall forfeit, and there may be withheld from his pay, such sum as the postmaster general may impose as fines or deductions; and further providing for annulment in case of repeated breaches or violations of the postal laws, and that such annulment shall not impair the right of the United States to claim damages under the contract, but such damages may, for the purpose of set-off or counterclaim, be assessed and liquidated by the auditor of the treasury for the post-office department, and that the contract is to be subject to all the conditions imposed by law and the several acts of congress relating to post offices and post roads,--for which the government was to pay Chilton $6,666 per year. On February 23, 1895, the defendant Robert A. Waite, as subcontractor, and defendants Alexander McWhorter and J. A. Waite, of Waukesha, as sureties, entered into a written agreement with E. A. Chilton, wherein said Waite, together with his sureties, undertook and bound themselves, for $4,800 per annum, “to transport the United States mail on said route from July 1, 1895, to June 30, 1899, at such times and upon such schedules as the postmaster general may direct, and in full compliance with the postal laws and regulations, and subject to, and in compliance with, all of the requirements of said party of the first part under said contract with the United States, for $4,800 per annum.” It was agreed that liability for all fines and deductions imposed by the postmaster general should be assumed by the subcontractor, and that, in case of any failure or refusal by the party of the second part to perform the mail service therein provided for, then the sum stipulated should become immediately due and payable to the party of the first part as liquidated damages. Upon the back of this subcontract were printed numerous provisions, described as the principal requirements of the contract between the United States and the principal contractor, to which contract such subcontract was subject. Those specifications reiterated many of the requirements as to the manner of carrying the mail; kind of wagons to be used; taking of oath by every employé; carriage of one railway postal clerk, a substitute or messenger, on the driver's seat; that employés shall be over 16 years of age, of good moral character, and able to read and write, and must take oath and wear regulation cap; and that the principal contractor agrees “to be accountable in damages to the United States, or any person aggrieved, for any failure to faithfully perform the obligations assumed by the contractor, or imposed by law on him or the persons employed by him, in the care, transportation, or custody of the mails.” The complaint then goes on to allege that the plaintiff was a railway postal clerk, required by his duty to ride from the Chicago & Northwestern Railway station, in Milwaukee, to the post office with the mails, in defendants' wagon, and was so riding on April 1, 1897; that on said day the defendants failed to use in said service a first-class horse, but knowingly used, attached to said wagon, a vicious, kicking, runaway horse, unsuitable and dangerous; that they failed to have or keep wagon, horse, and harness in good order and appearance, so as to perform the service safely, or without injury to the plaintiff, but, on the contrary, that the wagon was out of repair, furnished with no brake, the horse was vicious, kicking, and a runaway, and unsuitable, the harness was not in good order, but old, weak, and out of repair, too large for the horse, and the holdback straps were not of sufficient strength to be used on said wagon to keep it from running on the horse, and were broken, and that the defendants failed to furnish a proper, safe, or competent driver for the service aforesaid, but, on the contrary, furnished a driver who was a cripple, and wholly incompetent, unsafe, and unsuitable for the service,--all to the knowledge of the defendants; that on the way to the post office, coming to a descent in the street, the wagon, by reason of the aforesaid defects in, and unsuitableness of, said harness and wagon, and incompetency and unsuitableness of the driver, commenced to run against the horse, which commenced to kick, whereupon the driver, by reason of his incompetency and unsuitableness, was unable to hold the horse, and carelessly and negligently dropped the reins, so that the horse was free to and did run away, and collided with an express wagon, tipping over the mail wagon, and injuring the plaintiff, who was in the exercise of due and proper care and diligence, and guilty of no negligence contributing to the injury. The complaint concludes with the allegation that said injuries were caused solely by reason of the defendants' failure to perform and discharge the duties and obligations which they had assumed under and by virtue of said contracts. The original contractor and sureties were not served. Robert A. Waite, the subcontractor, by himself and his two sureties together, served separate general demurrers, which were overruled, from which orders separate appeals were taken.B. S. Tullar and H. C. Waite, for appellants.

Bird, Rogers & Bird, for respondent.

DODGE, J. (after stating the facts).

1. The complaint is very long, and somewhat ambiguous, as to whether it is founded on contract or tort. While many acts which might constitute negligence are alleged, they are not characterized expressly as either wrongful or negligent, and they are all asserted to constitute breaches of one or the other of the two contracts, which are not set out in extenso. Again, the sureties are joined as defendants, and judgment demanded against them jointly with their principal. Such demand can, of course, be supported only on the ground that their principal has breached some requirement of the contract, performance of which the sureties have guarantied. They have no other connection either with the plaintiff or with the acts and events out of which his claim arises. Their liability must arise, if at all, from the strict words of the written contract which they have signed. Considering, then, first, whether a cause of action ex contractu is set forth against these demurring defendants, it must be observed that many of the contractual undertakings alleged in the complaint have no application to them, but only to the other defendants, who executed the original contract with the United States. The demurrants' duty and liability must be found in the subcontract, which it will be noted is much narrower than the original. Its undertaking is at a considerably less price, and to perform only a part of the duties assumed by the original contractor. He agreed to carry the mails; to account for and pay over any moneys of the United States coming to his possession; to carry post-office blanks, mail bags, and all other postal supplies; to convey on driver's seat of each wagon a postal employé; that his contract might be extended additional six months, in discretion of postmaster general; and that he would be answerable to the United States or any person aggrieved for performance...