Bartholomay Brewery Co. v. Thomeier

Opinion by Willard, J., A statement of the facts in this case becomes necessary in order to show what was before the court below and what is here presented. (The court here recited the facts as set out in the statement of facts.) Seven assignments of error appear upon this record which will be disposed of in their order. The appellant offered to prove that Gundaker, about six months after the execution of the bond, when Thomeier owed $900, told the agent of the appellee that he would give him notice to terminate his liability on the bond; that the agent replied that if he would not do so, he would reduce the liability to a single car of beer, to be followed by evidence that this was not done. The offer was properly rejected on the ground of immateriality. The parties had agreed in the bond that the liability could be terminated by notice from either in writing, and there was no offer to show that the agent had any authority to waive the written notice required, nor did the offer designate how much a car of beer was worth, whether more or less than $500. That the undertaking was one of suretyship on the part of Gundaker was correctly ruled by the trial judge in his charge to the jury. It was so admitted by the appellant’s counsel on the trial. Upon the face of the instrument it is an undertaking by both obligors to pay any existing or future indebtedness of Thomeier to the appellee, not exceeding $500, and suit could be brought and maintained against both without first proceeding against and exhausting the property of Thomeier, and from the evidence it is apparent that he had none to exhaust. The instruction was correct: Kramph’s Exrs. v. Hatz’s Exrs., 52 Pa. 525; Allen v. Hubert, 49 Pa. 259; Marberger v. Potts, 16 Pa. 9; Riddle v. Thompson, 104 Pa. 330. The third assignment of error raises the important question in the case. Gundaker alleges that at the time he signed the bond, it was agreed by parol between himself and the agent of the appellee that each car load of beer should be paid for before another was shipped, and that a car load should not exceed $400 in value; that this part of the agreement was violated by the appellee. The object of this testimony was admittedly to change the terms of the bond by parol. It was admitted by the court, [353] and after the testimony was all in the court told the jury in his charge, “ I am clearly of the opinion under the evidence of Mr. Gundaker himself that it has not been shown by such clear, precise and indubitable evidence as the law requires, that there was a contemporaneous parol agreement entered into between Mr. Gundaker and the plaintiff company through its agent at the time the contract of suretyship was entered into as would make it permissible for Mr. Gundaker to prove such a contract for the purpose of affecting his liability under the contract of suretyship. There does not appear to the court to be such evidence in the case upon that point as would warrant you in concluding that Mr. Gundaker is for that reason released from his liability under this obligation which he entered into the 8th day of March, 1892.” In this instruction we think the court clearly right. The written instrument sought to be changed was the bond upon which Gundaker was to continue as surety until such time as he gave written notice of his withdrawal. His testimony on the subject is here inserted. Q. What took place between you and Mr. Stahl concerning this bond, and what induced you to sign it ? A. Mr. Stahl told me it would require a bond of some kind, and he says me being the executor of the estate he though it would be proper for me to sign that bond; and I told him I would under conditions. I asked how much of a bond they required, and he said they would require a $500 bond. And I suggested this contract, that if they hold Mr. Thomeier down to one car load of beer, in case he should not pay for that beer there would be enough left of the paraphernalia and bottling machinery that I could recover that and I could save myself. And he said if I would sign the bond he would draw that contract to that effect, and I had him put in that clause. Q. What did he say was the cost of a car load of beer? Mr. Smith objects. By the Court: Yes, I think that is in the same line. A. He said that it never exceeded $400. Said that as a rule it was under, said it hardly ever exceeded $400. It will be observed that this testimony refers specifically to the character of the written contract between the appellee and Thomeier, which contract was by its terms for only one year and expired on the 8th day of March, 1893; that after the expira [354] tion of the contract beer was delivered to Thomeier by the appellee amounting to $3,476. The bond in no way refers to the contract, and after the expiration of the contract Gundaker gave no written notice of his intention to withdraw from the bond, and afterwards acknowledged his liability for $500, and promised to pay it and asked for time in which to do so. And further, two months after the expiration of the contract between the appellee and Thomeier, he wrote the letter of May 9, 1893, hereinbefore quoted, soliciting a continuance of the relations between the appellee and Thomeier. The allegations of Gundaker are unsupported by the testimony of any other witness. Thomeier is not questioned when on the stand as to what took place when the bond was executed, and no circumstance corroborates the theory that the bond means that it was conditioned for the payment of a car load of beer, instead of the sum of $500 as clearly expressed in the instrument itself. Under this testimony no chancellor would reform this bond. There was no allegation of fraud, accident or mistake, and the judge was right in excluding the testimony from the consideration of the jury: Rowland v. Finney et Ux., 96 Pa. 192; Phillips v. Meily, 106 Pa. 536; Cullmans v. Lindsay, 114 Pa. 170, citing Spencer v. Colt, 89 Pa. 314; Baer’s App., 127 Pa. 360; Irvin v. Irvin, 142 Pa. 272; Bank v. Hartman, 147 Pa. 558; Woodcock v. Robinson, 148 Pa. 503; Stull et al. v. Thompson, 154 Pa. 43. It is immaterial that the beer was shipped and billed for convenience in the name of the Rochester Brewing Company. The evidence was conclusive that it belonged to the appellee, with whom the contract was made. The sixth assignment we cannot consider as the point involved is not before us. The court did not direct the jury to find for' the plaintiff as alleged in the seventh assignment. The charge as a whole was correct and not more favorable to the plaintiff than was warranted by the circumstances of the case. The specifications of error are all overruled and the judgment is affirmed.