Nichols v. Palmer

• Decision Date: 07 January 1880
• Citation: 4 N.W. 137,48 Wis. 110
• Parties: NICHOLS, Administratrix, v. PALMER and another
• Court: Wisconsin Supreme Court

4 N.W. 137

48 Wis. 110

NICHOLS, Administratrix, v. PALMER and another

Supreme Court of Wisconsin

January 7, 1880

Argued December 20, 1879

APPEAL from the Circuit Court for Manitowoc County.

On the 15th of October, 1875, plaintiff, as administratrix of Lemuel P. Nichols, deceased, executed a lease to the defendant Palmer of certain lands belonging to said estate, for a term of three years from said date, at an annual rental of $ 225 of which $ 50 were to be paid in improvements, and the remainder in two cash installments each year. The first cash installment was to be paid November 10, 1875; the second October 16, 1876; and others on corresponding days of the successive years. Palmer executed a bond for the performance of the covenants of the lease on his part, with his codefendant Vanderlip as surety. On the 19th of April, 1877 plaintiff and Palmer executed certain articles of agreement by the terms of which Palmer agrees to surrender possession of the premises by October 15, 1877, and also to pay plaintiff $ 125, and "give her the same cow she left him, sheep and pigs in proportion as though his time had expired, and that sum is to include all parcels of rent whatever might be. He will also allow any parties whom she may designate to commence plowing as soon as his crops are taken from the field."

Afterwards (but the printed case does not show when), plaintiff brought this action on the bond, for $ 50, balance of rent alleged to have become due November 10, 1877, with interest. As a witness in her own behalf she testified that $ 75 had been paid her on this last agreement, after October 15, 1877, and the remainder of the $ 125 was still due.

On defendants' motion the court ordered a nonsuit; and plaintiff appealed from the judgment.

Affirmed.

For the appellant, there was a brief by H. G. & W. J. Turner, and oral argument by W. J. Turner.

For the respondents, the cause was submitted on the brief of Henry Sibree.

HARLOW S. ORTON, J.

OPINION

ORTON, J.

It is clearly apparent, from the transaction itself, that the respondent Vanderlip was a mere surety on the bond conditioned for the performance of the terms of the lease on the part of the respondent Palmer. His liability therefore, was strict, and depended exclusively upon the failure of Palmer to perform the conditions of the lease. It is also apparent that the lease, as such, although not formally surrendered or discharged,...