Meinhardt Bros. v. Mode

Mr. Justice Raney delivered the opinion of the court: The authorities cited upon the subject of guaranty are not in point. This is not a case of guaranty. Though the appellants who were plaintiffs below were creditors of the judgment debtor, Trespole Myers, their claim against Myers is not the subject matter of the particular transaction out of which their claim against the appellee grows. They had no interest in the judgment of Kaufman against Myers, which judgment their money has in fact paid, and there is, in the matter now in controversy, nothing in the nature of an agreement to pay any debt due by Myers or any one else to plaintiffs. If there is any indebtedness from the appellee to appellants it is as a principal debtor, and not as a guarantor for another person primarily liable and upon whose default the appellee’s liability is to arise. Baylies on Sureties and Guarantees, 641; Parsons on Contracts, 494 ; 3 Kent’s Com., 121, 122 ; Gallagher vs. Nichols, 60 N. Y., 438. Mrs. Mode has never been a debtor of plaintiffs. It is clear that Hess was acting for and as the representative of the plaintiffs and was so dealt with. Hot only is this not denied, but he signed either their firm name, or his own, as their reprepresentative in the transaction, and they by their action have ratified his acts. The plain meaning of the telegram of the 17th of October to him was that the Kaufman judgment should be paid. The defend — 287 — ant who had used, without authority, the firm name of his business partnership, cannot be heard to say for his own benefit or relief, either that he did not have authority from Mrs. Mode to draw on her, or that he did not expect she would honor the draft. We do not see that the defendant can complain of Hess' having used a draft on his house in carrying out the purposes indicated by the telegram. Had he drawn in favor of the judgment creditor, Kaufman, or Kaufman’s attorneys, and cashed the draft for and taken an assignment of it to his house, relying upon its being paid, as he had the right to do from the telegram, he would have acted no more within the real purpose indicated by the telegram than he did act; and the defendant has now no more cause for complaint, in so far as the drafts are concerned, than he would have in such case. As it is, the plaintiffs have in effect merely cashed a draft which their agent acting in their name was authorized to draw. We do not see that there has been anything more than a good execution of the request made and authority given, or any substantial departure from what was authorized to be done. Story on Agency, §172. There was no direction which required, that the draft should be drawn in favor of the judgment creditor or other particular person. No harm has been done the defendant, there is no material departure from the instructions given, and nothing he can complain of in this feature of the business. It is argued by counsel for appellee that Hess acted officiously, and not pursuant to any request expressed or implied in the telegram, nor for the purpose of effectuating any end indicated by the telegrams, but rather in the interest of plaintiffs to obtain the assignment of Myers’ stock in which plaintiffs were interested. The construction that payment of the judgment was not a purpose indicated by the telegram,- or that Hess was not requested by the tele — 288 — gram to do that which would effect such purpose, is not reasonable, and there is nothing in the telegram that justifies the conclusion that he was acting merely officiously and in the interest of plaintiffs to obtain an assignment of Myers’ goods, and not pursuant to the telegram. If the telegram authorized the payment it was not voluntary. We think it did authorize it. If it was not intended to effect a payment, it was a delusion and would, if such, have effected only delay or fraud. Whether or not there was any previous action on the part of the plaintiffs, either by themselves, or by their agent, Hess, which eutrapped the defendant into sending the telegram, or any subsequent action on their part which relieves the defendant from the liability which would otherwise exist, is another question. In so far as the testimony shown by the bill of exceptions to have been submitted to the jury is concerned, we find that the defendant at some time previously to the sending of the telegram from Palatka to Fernandina had communicated with plaintiffs in regard to their claim against Myers, and the latter’s business. The nature of this communication was not shown to the jury. The telegram from Palatka represented that there was a judgment against Myérs, and that he had no money to pay it with, and would be closed up if it was not paid. The truth of these representations is not questioned. There was, in fact, an entry of a judgment in the clerk’s office. It is claimed by defendant in his testimony that he understood that the payment of the judgment, under which' the judgment creditor had levied on Myers’stock, would relieve Myérs and save him from me king an assignment, and his “ purpose was to have Hess, the agent of Meinhardt Bros. & Co., draw on Hannah Mode for the amount of the judgment, to save Myers from making an assign.ment of goods.” He further states that he never eommu — 289 — nicated to Hess, or to the plaintiffs, his intention as to the purpose for which he sent the telegram, further than what is stated in it, and that his understanding was based on the telegram from Hess to him. Hess says the purpose of his telegram to Mode was to provide means to save Myers’ stock from sale under the judgment, and that it was the only judgment against Myers he then knew of. There is nothing in the telegram sent to Mode which holds out the assurance that Myers either would or would not make an assignment if the judgment was paid. Nothing is said in it about any but one judgment, and as to this the plain representation is that Myers has not got the money to pay it, and if not paid he would be closed out, and though Mode had a right to infer that the result of a sale of Myers’ goods would follow, if there was not a payment, we do not think his conclusions as to an assignment were legitimate. If his understanding was that Myers’ stock had been levied upon and that a sale would he made unless the judgment was paid, he must have also understood that if the judgment was not paid there could be no assignment by Myers to the extent that his goods would be necessary to satisfy the judgment and costs of sale. Hess says he did not know of any other judgment and that he did not have anything to do with forcing the assignment, that the making of the latter was kept from his knowledge until it was ready to be perfected, and after they had it written they called him in, and he witnessed its execution. This assignment is not to plaintiffs, and plaintiffs are not shown to have induced it. There is in the making of an assignment, or the fact that plaintiffs were among the preferred creditors therein, or the fact that Hess acted subsequently as attorney in fact or agent for the assignees, and was put in charge of the goods, nothing which — 290 — of itself in law relieves the defendant from the liability incurred by him through the telegram and the subsequent action of Hess thereunder for the plaintiffs. The defendant should not have been permitted to state what his intention in sending the telegram was. The entire contract between the parties relating to the subject, whatever such contract was, should have been permitted to go to the jury. The intention of parties contracting is to be derived from the terms aud subject matter of the contract, and not from the statement of one party to it as to what may have been his understanding or individual intention. The doctrine of the Case of Beach vs. R. & D. R. R. Co., 37 N. Y., 457, cited for appellee, is that the extent to which telegrams between parties are to be treated as written contracts depends upon the circumstances in which they are sent and the intent and object for which they are transmitted and received ; that where there has been a previous communication between the parties with reference to the subject matter of the contract, and the telegram is sent to fix some one of the details of the agreement between them, such telegram is evidence only of the purpose for which it was sent and does not constitute the contract; that where the original propositions or agreement between the parties were oral they may be proved by oral evidence, as modified or affected by the telegram. See also Barnett vs. Robinson, 18 Fla., 602. The telegram was held in the above case from Hew York to be the evidence of the purpose for which it was sent. Where the entire contract is not in writing the omitted parts may be proved orally. If the telegrams in the case before us do not contain the entire contract (as is frequently the fact) the other parts may be proved by verbal testimony, or if there are other writings constituting a part of the contract they can and should be put in evidence. Had — 291 — there been an agreement previously made between the parties, and in pursuance of which Hess was to send the telegram, it should be admitted as part of the contract. The rule is simply that the entire contract, whether it be all in writing, in one paper or in several papers, or partly in writing and partly by parol, should be proved, and this is not at all inconsistent with the rule that where parties have reduced their contract to writing, parol testimony of previous or contemporary communications shall not be used to alter or add to the language used in the instrument or instruments in which the contract is embodied. Story on Agency, sec. 79. In view of the fact that the defendant says he did not communicate to the plaintiffs or Hess his “ intention as to the purpose for which ” he sent the telegram further than is stated in it, the statement of such intention was the more inadmissible, and should have been stricken out. The rule which prevails where the question at issue is whether a party did a certain act with a fraudulent intent as in Germania Fire Insurance Co. vs. Stone, 21 Fla., is not applicable here. What we have said sufficiently disposes of the points made in the brief of the appellants, and indicates our views for further proceedings on a new trial. The assignments of error not discussed in the brief for appellants, are treated as abandoned. Southern Express Co. vs. Van Meter, 17 Fla., 733. We think the verdict was contrary to the evidence, and must grant a new trial. It is so ordered.