Breidenbach v. Upper Valley Orchards Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This action was brought by Breidenbach Bros., copartners, against the Upper Valley Orchards Company and Peter Ivanhoff, to recover $1,150.50 and to establish and foreclose a materialman’s lien. The trial court denied the plaintiffs the right to a lien, but rendered a personal judgment against both defexxdants -for $1,032 and costs. From that judgment and from an order denying it a new trial, the defendant Orchards Company appealed. [250] It is alleged in the complaint that between October 19 and November 20, 1914, plaintiffs sold and delivered to defendants goods, wares and merchandise (dynamite, fuse and caps) for which the defendants agreed to pay $1,150.50. The answer of the Orchards Company is substantially a general denial. Ivanhoff appeared by demurrer and, when this was overruled, failed to plead further. Upon the trial these facts were made to appear: Ivanhoff had a contract to clear and plow certain lands for the Orchards Company, and in the prosecution of this work required the materials which furnish the subject matter of this litigation. He applied to the plaintiffs to secure the goods upon credit, but was informed by J. A. Breidenbach that they would have to be assured that they would get their money. Ivanhoff replied that he could arrange the matter with the Orchards Company, and a day or two later brought to the Breidenbach store Thos. M. Norton, manager for the company. What then transpired is told by J. A. Breidenbach in his testimony, as follows: “He [Norton] said to go ahead and let Mr. Ivanhoff havé the stuff and he would see that we got the money for it.” The goods were delivered in four installments, and on each occasion a slip was made out by plaintiffs upon which the goods were charged to Ivanhoff alone. When the account was transferred to the ledger it was entitled, “Peter Ivanhoff, c/o Upper Valley.” About December 1, 1914, plaintiffs brought an action against Ivanhoff alone to recover for these same goods, and made and filed the necessary affidavit for a writ of attachment. In the complaint in that action, they alleged that the goods were sold and delivered to Ivanhoff and that Ivanhoff promised to pay for them, and substantially the same averments appear in the affidavit. Concerning that action, J. A. Breidenbach testified: “When we brought this suit against Ivanhoff, we looked to him first as the man who owed us the money, and looked to Upper Valley Orchards Company as the guarantor.” And again testified, “We looked to Mr. Ivanhoff first and then the Upper Valley Orchards Company to pay the account in accordance [251] with the conversation with Mr. Norton,” and again, “The only reason that we seek to charge the Upper Valley Orchards Company for the price of dynamite is because Mr. Norton came into the store with Ivanhoff and said that he would see that we got our pay for it. ’ ’ The same witness also testified: “ We sold dynamite, caps, and fuse to the defendant amounting to $1,150.07, as I remember it. It was sold to — Mr. Ivanhoff got the goods. ’ ’ The complaint in the present action is drawn to conform to the theory of joint liability; but that theory was exploded when plaintiff J. A. Breidenbach testified as indicated above. It is impossible to find from his testimony that the goods were sold to defendants jointly. The only conclusion admissible is that the goods were sold to Ivanhoff, and that Norton agreed to pay for them in the first instance or agreed to pay for them, if Ivanhoff failed to do so. It is not necessary now to consider whether Norton was [1] representing the company when he made the promise, and, if he was, whether he had authority to do so. Assuming that he was speaking for the company and with authority, the question then arises: What is the character of the agreement which he entered into with the plaintiffs ? Did he promise to pay the •debt of the company, or did he promise to pay Ivanhoff’s debt? If the former, the promise was original and not within the inhibition of the statute of frauds. If the latter, the promise was collateral, and, not being in writing, was void under the express provisions of section 5017, Revised Codes. Where the language employed in making the promise is unequivocal and such that by immemorial custom and common consent it has but one meaning, the character of the promise is to be determined as a question of law'. (Fortman v. Leggerini, 51 Mont. 238, 152 Pac. 33.) But where the language is such that reasonable minds might differ as to the meaning intended to be conveyed, then the character of the promise is to be determined as a question of fact, depending upon the intention of the parties at the time the promise was made, as such intention is "re [252] vealed by the surrounding circumstances. (McGowan Com. Co. v. Midland Coal Co., 41 Mont. 211, 108 Pac. 655.) In tbe trial court tbe parties proceeded upon the theory that the character of the promise made by Norton was properly to be determined as a question of fact, and appellant now insists that the evidence is insufficient to warrant the court in submitting the question to the jury, and with this we agree. What were the attending circumstances from which the [2] intention of plaintiffs and Norton is to be ascertained? (a) The negotiations had their inception in the application of Ivanhoff to plaintiffs for credit for himself, not to the company. (b) The goods were delivered to Ivanhoff. (c) They were charged to Ivanhoff, and not charged to the company, (d) Plaintiffs brought an action against Ivanhoff alone to enforce payment for the goods, (e) Plaintiffs looked to Ivanhoff primarily and to the company only as guarantor. Instead of establishing an original promise, this evidence leads to the conclusion that plaintiffs understood that Ivanhoff was to be held primarily liable and that the company would be called upon only in the event that Ivanhoff failed to discharge his obligation. Counsel for respondents lay stress upon the testimony of Ivanhoff; but however it may reflect upon the transaction as between him and Norton, or as between him and the company, it does not, and from the very nature of the case cannot, shed light upon the intention of the plaintiffs at the time of their agreement with Norton. Ivanhoff was an independent contractor, and not an agent of the company. But aside from every other consideration, there is the insuperable objection that in this action Ivanhoff is pursued as a party to whom credit was given. In order [3] to bind the company for goods sold to Ivanhoff, it is indispensable that credit was given to the company exclusively. If any credit was given to Ivanhoff, the company is not liable, since its promise was not in writing; and this is so even though its promise may have been the principal inducement to the plaintiffs to deliver the goods to Ivanhoff. The rules of law which govern a transaction of this character were considered so recently [253] and stated so fully in McGowan v. Midland Coal Co., above, and Fortman v. Leggerini, above, that a further citation of authority is unnecessary. The judgment and order are reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded. Mr. Chief Justice Bbantlt and Associate Justices Hurl? and Matthews concur. Mr. Justice Cooper, being absent, takes no part in this decision.