New Home Sewing-Mach. Co. v. Simon

• Decision Date: 26 September 1899
• Parties: NEW HOME SEWING-MACH. CO. v. SIMON.
• Court: Wisconsin Supreme Court

104 Wis. 120

80 N.W. 71

NEW HOME SEWING-MACH. CO.

v.SIMON.

Supreme Court of Wisconsin.

Sept. 26, 1899.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by the New Home Sewing-Machine Company against Mathias Simon on a guaranty. From a judgment in favor of plaintiff, and from an order denying a motion to set aside a special verdict and for a new trial, defendant appeals. Reversed.

The complaint in this action alleges that one R. L. C. Holbek, being desirous of purchasing and handling sewing machines, applied to the plaintiff for credit. He was informed that it would be necessary for him to furnish security; whereupon the defendant executed and delivered to plaintiff an instrument in writing in the form of a letter of credit, wherein he agreed to guaranty the payment of the value and price of such goods as might be sold to Holbek, to an amount not exceeding $2,000. The plaintiff sold machines and supplies to Holbek from time to time, and at the date of commencement of suit he was indebted to plaintiff in the sum of $1,989.61. The defendant answered that the instrument mentioned, according to agreement between the parties, was to have been signed by another surety before it was to take effect; that defendant was never notified that plaintiff accepted the instrument; and that subsequently, by agreement between plaintiff and Holbek, the contract was modified, and the paper was delivered as a guaranty for $1,000 and no more. Upon the trial the following special verdict was rendered: “Question 1. Did the plaintiff notify the defendant on the 9th of September, 1895, that it accepted the letter of guaranty signed by said defendant? Answer. Yes. Question 2. In case you answer the preceding question in the affirmative, then were sales made by the plaintiff company from the 9th of September, 1895, to June 23, 1897, to R. L. C. Holbek, upon the faith and strength of the letter of guaranty? Answer. Yes. Question 3. At the conference between Emil Simon and the defendant, on the 9th day of September, 1895, did the defendant give Emil Simon any notice that he would not be bound by the letter of guaranty, for the reason that it had not been signed by another surety? Answer. No. Question 4. Did the plaintiff company, at the close of the conversation, on the 9th day of September, 1895, between Emil Simon and the defendant, have knowledge of sufficient facts in respect to this letter of guaranty, as to the manner in which this letter of guaranty was signed, to put a reasonably prudent man on inquiry as to whether there was to be another signer before the defendant was to be bound? Answer. No. Question 5. Did the plaintiff, within a reasonable time after the ceasing to give credit to R. L. C. Holbek, give notice to the defendant that said Holbek was in default, and that it would look to the defendant as guarantor? Answer by the Court. Yes. Question 6. What balance was due the plaintiff from R. L. C. Holbek for sewing machines and sewing-machine supplies furnished by the plaintiff to said R. L. C. Holbek between the 9th of September, 1895, and the commencement of this action? Answer. Fourteen hundred dollars. Question 7. In case the plaintiff is entitled to recover, at what sum do you assess its damages? Answer. Fourteen hundred dollars, without interest.” The plaintiff moved to set aside the answers to questions 6 and 7, as being contrary to the undisputed evidence, and for judgment for $2,000, which motion was granted. The defendant moved to set aside the verdict, and for a new trial, for certain specified errors, which motion was denied. The defendant brings the case to this court for review.

Winter, Esch & Winter, for appellant.

Fruit & Gordon, for respondent.

BARDEEN, J. (after stating the facts).

One of the main issues raised by the defendant's evidence was whether the instrument sued upon ever had legal inception. The defendant claimed that the paper in question was delivered to Holbek upon the express understanding that it was not to be delivered to plaintiff until Holbeck had secured another signer thereto, and that he notified plaintiff's agent of that fact before any credit was extended to Holbek. On the trial the defendant attempted to show the understanding between himself and Holbek in regard to securing another signer to the paper, which testimony was excluded by the court, on the ground that “any talk or conversation between himself and Holbek would not be competent, in the absence of representatives of the plaintiff.” The court, however, permitted defendant to testify that when plaintiff's agent called at his store, on September 9, 1895, before any credit had been extended to Holbek, he told him that he signed the paper with the distinct understanding that there was to be another bondsman when delivered. Thus, under the ruling of the court, the defendant was allowed to prove but one-half of his defense. It was certainly no defense to the action that defendant told plaintiff's agent that the paper was...