William Deering & Co. v. Russell
| Decision Date | 29 November 1895 |
| Citation | 65 N.W. 691,5 N.D. 319 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ransom County; Lauder, J.
Action by William Deering & Co., a corporation, against R. R Russell and others. Judgment for plaintiff, and defendants Aylen and Labbitt appeal.
Affirmed.
Mitchell & Gram and Edward Engerud, for appellants.
John E Greene, for respondent.
The plaintiff is a corporation engaged in manufacturing and selling machinery and supplies, with its home office at Chicago, Ill. In 1893 the defendant Russell was the agent for plaintiff at Sheldon and Enderlin, in this state. The other defendants were guarantors of the due fulfillment of the agency contract. On the settlement of the business for that year between the principal and agent, it was found that Russell had received property belonging to plaintiff amounting to $ 2,325.64, for which he had not accounted. A large part of the deficiency was on twine account. This action was brought on the written guaranty to recover the deficiency. Russell was not served, and does not defend. The defendants Aylen and Labbitt answer jointly. There was a trial to a jury. Verdict directed for plaintiff. Judgment on the verdict, and defendants appeal from the judgment on alleged errors of law occurring at the trial, and duly excepted to.
The uncontradicted testimony shows that on February 16, 1893, two contracts were executed between respondent and Russell. One Stanton, who was a general agent for respondent, residing at Fargo, acted for the respondent in the transaction. One of these contracts appointed Russell agent for the respondent for the sale of twine alone, and specified in detail the manner in which that article should be sold, and at what prices, and the consideration that the agent should receive for selling the same. The other contract was more comprehensive. By its terms, Russell was appointed as agent for the respondent for the sale of "its harvesters, binders, reapers, mowers, twine, extra parts, trucks, bundle carriers, flax carriers, and other attachments, on commission." Defendant Russell took this contract away for the purpose of getting the guaranty contract, which was printed either at the bottom or on the back of the same sheet, signed by the other defendants. It was so signed and returned, but the machine contract was mutilated in some manner, and another contract was drawn, identical in its terms, but dated February 23, 1893, and the guaranty contract thereon was also signed by the defendants and appellants. It is upon this contract that this action is brought. It is in the following language: At the end of the agency contract, and preceding the contract of guaranty, were these words: "This contract is not binding upon William Deering & Co. until accepted by it at Chicago, Illinois." The copy of the contract set out in the pleadings, and which is not questioned, shows immediately after the above these words:
The defendants and appellants seek to avoid liability upon several grounds. They admit the making of the contracts on the part of Russell, as above set forth, except that they claim that the twine contract was entered into after the making of the machinery contract, and after they had signed the guaranty contract. They allege and here claim that the word "twine," which was in the printed form of contract used, was left in the machinery contract and in the guaranty contract inadvertently and unintentionally that in fact the parties to said contract did not intend that the machinery contract or the guaranty contract should cover the article of twine; that appellants signed said guaranty contract on the representations of the respondent and Russell that the same did not cover the article of twine. They also allege payment in full. And as a further defense they alleged that, when the twine contract for 1893 was made, Russell was largely indebted to respondent upon the prior contract of the firm of which he had been a member, for handling twine for respondent in the year 1892, and that it was secretly agreed between respondent and Russell that his compensation for handling twine in 1893 should be applied upon his pre-existing indebtedness to respondent; that such understanding was fraudulently concealed from them, and if they had known it they would not have signed said guaranty. Whether the separate twine contract was executed contemporaneously with or subsequent to the machinery contract is not, perhaps, very material. Still, if it be to appellants' detriment to hold that the twine contract and the original machinery contract, dated February 16, 1893, and which was mutilated and destroyed, were executed on the same date, and as a part of the same transaction, they cannot be heard to complain of such holding. Mr. Stanton, as a witness for appellants, testified: There was no claim of surprise, and no effort made to show that the witness was mistaken. But if this guaranty is a valid, binding contract upon appellants, the time of the execution of the separate twine contract is immaterial, because it is admitted that "twine" was included both in the machinery contract, to which the guaranty contract was appended, and in the guaranty contract itself, and such contract reads: "The undersigned...
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