Gibbons v. Grinsel

The following opinion was filed February 24, 1891: Cassoday, J. The facts are undisputed. 1. It is claimed that the several signers of the original agreement thereby agreed jointly, but not severally, to pay to Davis & Rankin [369] the amount therein specified for the structure, and hence that this action cannot be maintained against the defendant alone. The principal case relied upon by counsel to support this proposition is Ripley v. Crooker, 47 Me. 370; S. C. 74 Am. Dec. 491. In that case the plaintiff and the four defendants were desirous of building a ship,— five sixteenths of which, when complete, were to belong to the plaintiff, and the other eleven sixteenths were to belong to the defendants,— each taking a fractional share thereof. The plaintiff agreed with the defendants to build théir share (eleven sixteenths) of the entire ship, for which they agreed to pay him a certain sum. The contract was signed by all the parties, and opposite the name of each defendant was a fraction indicating the amount of his interest in the ship, but it contained no statement of any particular amount for each to pay, nor any words indicating a several liability; and the court held that -the contract created a joint liability only. It is enough here to say, in reference to it, that it is distinguishable from the case at bar. So also is the case in this court cited by counsel to the same proposition. J. A. Treat L. Co. v. Warner, 60 Wis. 183. “ The construction of a contract is nothing more than the gathering of the intention of the parties to it from the words they have used.” Di Sora v. Phillipps, 10 H. L. Cas. 638. In the ascertainment of the thought or purpose so expressed, regard must undoubtedly be had to the whole instrument, as applied to the facts and circumstances .to which it relates. Jacobs v. Spalding, 71 Wis. 189. When the agreement, so considered, reveals some obvious absurdity or some repugnance or inconsistency with such manifest intention, then, to avoid such consequences, but no further, the meaning of the particular words employed may be modified, extended, or abridged. Here the language is: “ We, the subscribers hereto, parties-of the second part, agree to pay the above amount; ” and [370] “ for a faithful and full performance of our respective parts of the above contract, we bind ourselves,” etc. This is followed by the name of each such subscriber, with the amount of his particular subscription; as for instance the subscription of the defendant, as mentioned in the foregoing statement. The manifest purpose was that each such subscriber should thus pay the amount of his particular subscription, and not that he should become liable jointly with all the other subscribers for the aggregate amount of all the subscriptions. In other words, the amount which each subscriber thus agreed to pay was limited to the amount which he thus subscribed; otherwise a few responsible subscribers might be made liable for numerous irresponsible subscribers. These views are in harmony with the rules of law stated. See, also, Landwerlen v. Wheeler, 106 Ind. 523; Erie & N. Y. City R. Co. v. Patrick, 2 Keyes, 256. The interest of the respective subscribers in the contract was manifestly intended to be separate, and hence the liability thereby created was severable. 1 Pars. Cont. 12-20, and notes. This is further apparent from the fact that the subscription contemplated the formation of a stock company, in which each subscriber was to have stock of an amount commensurate with his subscription. We must hold that the contract created a several liability on the part of the subscribers. 2. Counsel claim that the defendant was released from liability by reason of the building being completed according to the contract as modified, instead of the original. Put the modification was made by the agreement of a majority in number and amount of the subscribers, who must be regarded as the representatives of the unincorporated association. Manifestly the change improved the building. The defendant is not called upon for any portion of the additional expense by reason of the change. The agreement contemplated the completion of the building within [371] sixty days, and it was completed within the time. True, such modification of the agreement was without the knowledge or consent of the defendant, but the nature of the change was such that it must have been apparent to the citizens generally, and yet' it does not appear that he made any objection. The case is not to be regarded the same as though the building was constructed for the defendant alone. He, in common with the other subscribers, was interested in having the creamery constructed; and he must be regarded as having acquiesced in the change effected by the majority for his good as well as the good of the other subscribers. 3. Counsel claim that there was no consideration to support the promise. It is well settled that any benefit or advantage to the party making the promise, or any inconvenience or damage sustained by the .party to whom the promise is made, is a sufficient consideration to support a promise to pay. There are authorities going to the extent of holding that, where several persons subscribe, or agree to contribute, to a common object, the promise of each is a good consideration for that of the others. But we need not go to that extent in this case, since all the authorities agree that where, as here, the persons to whom the subscriptions run have expended money or incurred obligations on the faith of such subscriptions, it is a sufficient consideration to support the promise therein to pay. Eycleshimer v. Van Antwerp, 13 Wis. 546; Lathrop v. Knapp, 27 Wis. 214; La Fayette Co. M. Corp. v. Magoon, 73 Wis. 627; Troy Conference Academy v. Nelson, 24 Vt. 189; Barnes v. Perine, 12 N. Y. 18; Pitt v. Gentle, 49 Mo. 74; Homan v. Steele, 18 Neb. 652. 4. Counsel claim that the defendant was released from liability by reason of the association being incorporated with a larger amount of capital stock, and a larger number of shares, and a less amount for each share, than contem [372] plated in the agreement. But all that took place after the defendant’s liability had been incurred and Davis & Rankin had transferred their interest in the contract to the plaintiff. Besides, that part of the agreement relating to such incorporation was solely for the benefit of the subscribers, and in no way affected their liability to Davis & Rankin, or their assignee; and hence a departure therefrom is not available as a defense. By the Court.—The judgment of the circuit court is affirmed. A motion for a rehearing was denied April 9, 1891.