Morley-Murphy Co. v. Van Vreede

• Decision Date: 10 November 1936
• Citation: 269 N.W. 664,223 Wis. 1
• Parties: MORLEY-MURPHY CO. v. VAN VREEDE et al.
• Court: Wisconsin Supreme Court

223 Wis. 1

269 N.W. 664

MORLEY-MURPHY CO.

v.VAN VREEDE et al.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Affirmed.

In this action, commenced June 30, 1933, the plaintiff, Morley-Murphy Company, a corporation, seeks to recover from the defendants, Theodore J. Van Vreede and Bert Van Vreede, on a written guaranty. Trial was had to the court without a jury. From a judgment, dismissing the complaint on the merits, entered May 2, 1935, the plaintiff appealed. The material facts will be stated in the opinion.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for appellant.

Fox & Fox, of Chilton, for respondent.

NELSON, Justice.

For many years prior to March 28, 1932, John Van Vreede, a brother of the defendants, was engaged in business as a retail hardware merchant. On that date he was indebted to the plaintiff in the sum of $2,198.35 for goods theretofore sold and delivered to him by the plaintiff and for certain accrued interest. Some of his indebtedness was evidenced by promissory notes and some by open account. For some time prior to March 28, the plaintiff felt considerable concern regarding Van Vreede's indebtedness and sought to have it secured in some way. John Van Vreede, however, was unable to secure it. On March 28th, the defendants, who were farmers, came to the store of John Van Vreede pursuant to his request. William Poirier, a field man in the credit department of the plaintiff, was also present pursuant to a prearrangement. He had with him a form of guaranty which he had brought with him and which he was desirous of having the defendants sign. An extended interview between Mr. Poirier and the three Van Vreedes took place. While considerable dispute arose at the trial as to what was said by Poirier at that meeting, we shall pass over that because in our view, under the findings of the court and in view of the disposition to be made of this action, much of the conversation there had is not of controlling importance. Suffice it to say that at the conclusion of the interview, the defendants, one of whom had read the guaranty, and the other of whom had had an opportunity to read it, signed it and delivered it to Mr. Poirier. The guaranty was addressed to the plaintiff, and so far as here material was as follows:

“Please sell and deliver to J. H. Van Vreede of Wrightstown, Wisconsin, on your usual credit terms, such goods, wares, and merchandise as he from time to time may select and in consideration thereof I hereby guarantee and hold myself personally responsible for the payment at maturity of the purchase price of all such goods, wares and merchandise so sold or delivered whether evidenced by open account, acceptance, note or otherwise.”

“This is intended to be a continuing guaranty applying to all sales made by you to J. H. Van Vreede from this date until the same is revoked by me by letter dispatched by registered mail and a registered return receipt for said letter shall be conclusive evidence of the receipt of notice of revocation. In further consideration for the sale and delivery of goods, wares and mdse., such as J. H. Van Vreede may from time to time select, I also hereby guarantee and hold myself personally responsible for the payment within _____ days from this date for the amount of the indebtedness of said J. H. Van Vreede to Morley-Murphy Co. as of this date, it being distinctly understood by me that this indebtedness now amounts to Twenty One Hundred Ninety Eight 35/100 ($2198.35) Dollars.”

After the guaranty was executed and delivered, the plaintiff continued to fill the orders for merchandise sent it by John Van Vreede, continuing so to do until about the last of May, 1933, when John Van Vreede made a voluntary assignment for the benefit of his creditors. Some time during the month of December, 1932, Poirier inserted in the blank preceding the word “days” the figures “280.”

Mr. Poirier testified with reference to the blank space as follows: “We did not know what length of time to put in there. At this time I was talking to Mr. Theodore Van Vreede and Mr. Bert Van Vreede, and when it came to filling in the length within so many days, I didn't know what date to put in there, so I mentioned that we would leave that blank, and that any time in the future if we thought it necessary to put in a date, that we would get together,-I mean myself and the guarantors,-and we would put in the date.”

Mr. Poirier admitted that in December, 1932, he inserted the figures “280” without again mentioning it to the defendants and without consulting or talking to either of them regarding the insertion of “280” in the guaranty. The guaranty, as annexed to the complaint as an exhibit, contained the figures “280.” The defendants in their answer set up fraud on the part of Poirier in obtaining the guaranty. The fact that the guaranty had been altered was apparently not discovered by the defendants until Mr. Poirier admitted upon the trial that he had made the alteration. The defendants then asked leave to amend their answer so as to assert that the contract had become void by reason of the material alteration of the instrument by the plaintiff's agent. That amendment was allowed.

The court found, among other things, that no statements were made by Mr. Poirier at the time the guaranty was obtained, which were misrepresentations or intended to defraud;...