Colby Wringer Co. v. Coon

Grant, O. J. (after stating the facts). 1. Defendant contends that he is not liable, for anything but wringers and clocks specified in the contract. The third clause in the contract provides that Havens should pay $3 for each [210] No. 3 Colby wringer sold on installments, and $2.50 for each one sold for cash; $4 for each clock sold on installments, and $3.50 for each clock sold for cash. If the contract did not expressly cover other articles, the defendant’s contention would be sound. The second clause, however, expressly provides that the plaintiff should furnish not only the goods mentioned in the third clause, but also “such other goods as may be further agreed upon by the parties hereto.” The fourth clause, providing for payment, specifies the articles in the third clause, and also “others as per price list.” The terms of the bond cover every obligation under the contract, and made the defendant liable for everything furnished in accordance with its terms. All the goods were so furnished. 2. It is urged that the court erred in instructing the jury that, if defendant understood the situation, there was no occasion to notify him. The objection is that there was no evidence to show such knowledge on the part of the defendant. Mr. Havens died soon after this suit. was commenced. Defendant was not sworn as a witness. On March 5, 1894, plaintiff wrote Mr. Havens, asking if it would not be possible for him to arrange with his bondsman to raise an amount sufficient to square off his cash balance as it stood on his reports. It is fairly to be inferred from Havens’ reply that he had informed defendant of the situation, and had attempted to borrow the money from him. This letter was produced by the defendant, and introduced in evidence without objection. No claim is made that the letter is not competent evidence of the matters therein stated. ' The only claim made is that, if Havens did apply to Coon for a loan of money to pay his indebtedness to plaintiff, this was not such a notice as would make him responsible on the bond. It cannot, therefore, be said that there was no evidence tending to show knowledge on the part of the defendant that Havens was running behind. The question, however, becomes immaterial in view of our holding on the next point. 3. The principal question in the case is, Was the defend [211] ant relieved from liability by the failure of the plaintiff to notify him that Havens was behind in his payments? There is no evidence that plaintiff had any knowledge, or intimation even, that the accounts rendered by Havens were not correct. Still the court left that “question to the jury, instructing them that, if plaintiff had knowledge of dishonesty on the part of Havens, it was its duty to notify defendant, and that the failure to so notify him would he a complete defense, but that, if the plaintiff “allowed Havens °to run along in a negligent manner, simply permitting him to go on, and was trying to get these amounts from him, this would not be sufficient to release the security, because the bond was given to cover just such a contingency.” The circuit judge correctly stated the law. Ætna Ins. Co. v. Fowler. 108 Mich. 557, and authorities there cited. Judgment affirmed. The other Justices concurred.