W. W. Kimball Co. v. Baker

• Decision Date: 03 March 1885
• Citation: 62 Wis. 526,22 N.W. 730
• Court: Wisconsin Supreme Court
• Parties: W. W. KIMBALL CO. v. BAKER AND ANOTHER, IMPLEADED, ETC.

62 Wis. 526

22 N.W. 730

W. W. KIMBALL CO.

v.BAKER AND ANOTHER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from circuit court, Marinette county.

This is an action upon a bond executed by Shadboldt & Burbank, as principals, and the respondents, Baker and Fridstein, as sureties, to the plaintiff in the penal sum of $1,000, reciting, in effect, that S. & B. had been appointed the agents of the plaintiff at Marinette “for the purpose of selling for and remitting the proceeds of such sales, all goods consigned to such agents, as per the terms of the within contract;” and conditioned that “if such agents shall in all things, with honesty and fidelity, discharge their said duties as agents of” the plaintiff, “and at all times, on demand, produce and deliver to said” plaintiff “all goods consigned to him, [them,] or the cash proceeds from the sale of the same, then this obligation to be void, otherwise to remain in full force and effect.” The “within contract,” mentioned in the bond, was written and printed on the back of the bond, and in the form of a proposition from S. & B., among other things, to the following effect: That they would take the plaintiff's pianos and organs on consignment on the following terms: “In consideration of having the exclusive agency for the sale of said instruments for Marinette, Fort Howard, and Green Bay, (1) I will order from and sell exclusively for you. (2) Will make returns of all instruments ordered within sixty days from shipment. (3) Will pay you in cash for goods as fast as sold, or in approved paper. (4) I will at no time order stock or instruments on sale that shall exceed $600 in amount before returns are made. (5) In case returns are not made in sixty days from shipment, I will pay eight per cent. interest until returns are made, and instruments remaining on my hands longer than sixty days shall be subject to your order; or this contract may be terminated by either party at any time, and any stock on hand subject to your order. (6) All goods returned, to be passed to our credit at ninety per cent. of original bill. (7) I will return you a monthly statement of all instruments received and sold, and make prompt returns in cash as fast as sales are made.” The above proposition was accepted by the plaintiff, in writing thereunder, in these words: “SIR: Your contract or proposal, as above, we accept.”

These written instruments were set out in full in the complaint, which also alleged, in effect, the incorporation of the plaintiff; the partnership and business of S. & B.; the shipments of the plaintiff to S. & B. under the contract; the failure of S. & B. to account for or return to the plaintiff a portion of the instruments ordered by them and received from the plaintiff, to an amount exceeding $1,700, at the fixed and agreed value thereof; that more than 60 days had elapsed since any shipment; that more than 60 days prior to the commencement of the action the plaintiff had ordered all instruments unaccounted for or returned, to be returned to the plaintiff, or their respective prices paid; but that S. & B. had not in any way accounted for any of said instruments, or returned any of them to the plaintiff. Judgment was demanded for $1,000, and costs. To that complaint the sureties demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action against them. From the order sustaining the demurrer the plaintiff brings this appeal.Webster & Brazeau, for appellant.

Fairchild & Fairchild, for respondents.

CASSODAY, J.

The contract and bond were parts of the same transaction, and must be construed together as one instrument. Gillmann v. Henry, 53 Wis. 468;S. C. 10 N. W. REP. 692. By the acceptance of the contract and bond the plaintiff took upon itself every duty and obligation implied in either. By construing the two instruments together, we think the plaintiff, by accepting the contract, and as obligee in the bond, impliedly agreed with the sureties that it would at no time fill orders to an amount exceeding the $600 before returns were made. So construed, that clause would seem to have been put in the contract for the protection of the sureties. The plaintiff could not be injured by receiving such excessive order. It might by filling it; but the filling of it would at all times be optional with the plaintiff, to whom the state of the account would necessarily be known. With the sureties it was different. They could not know that such excessive order would be made, nor, if made, that it should be filled by the plaintiff. They had the right to rely upon the plaintiff's implied undertaking not to fill such excessive order if made. Confessedly, the plaintiff filled such orders to an amount exceeding $1,700. By so doing, it is claimed on the part of the sureties that they were thereby entirely released. Whether this is so or not is the principal question to be determined.

It is elementary that sureties are favorites of the law, and have a right to stand upon the strict terms of their...