Spencer v. Holman

Cassoday, C. -J. Four grounds are urged in support of tbe nonsuit in favor of Claris E. Holman. Tbe view we bave taken of tbe case makes it unnecessary to consider all of them. For tbe purposes of tbis appeal, we shall assume that tbe guaranty upon which tbe plaintiff seeks to recover against him in tbis action, although signed several weeks after tbe execution of tbe contract, was neverthelesss based upon a sufficient consideration. That guaranty is set forth in full in tbe foregoing statement of facts. It consists of two clauses. Tbe first simply guaranteed tbe fulfillment of the contract of November 26, 1892, on tbe part of Baggs and L. Holman. By tbe second be agreed to make good to tbe plaintiff all damages arising from any failure of Baggs and L. Holman to log, saw, and pile tbe timber that was burnt, within tbe time stated in tbe contract, which was “during tbe winter of 1892 — 93.” If tbe general clause covered tbe burnt timber, then tbe specific clause was without significance. It is well settled “that general words in any instrument” are “weakened by enumerations.” Sharpless v. Mayor, etc. 21 Pa. St. 161; Webster v. Morris, 66 Wis. 395; McAlpine v. Foley, 34 Minn. 252. As stated by tbe late Chief Justice GimnnnAN, “tbe definite and precise must prevail over the indefinite, tbe particular over tbe general, and the express over what might otherwise be implied.” Quimby v. Shearer, 56 Minn. 538, 539. Tbe guaranty simply covers tbe burnt timber. It is conceded that tbe burnt timber was logged, sawed, and piled during tbe time speci [344] fied, or at least within one year from tbe time tbe contract was made. ' Assuming that tbe general clause of tbe guaranty covers some other liability as to tbe burnt timber, not mentioned in tbe second clause, still tbe question recurs whether tbe plaintiff’s claim for damages therefor is not barred, as against Clark E. Holman, by the six-year statutes of limitation set up in bis answer. Secs. 4219, 4222, Stats. 1898. As indicated, tbe contract of November 26, 1892, was to be performed during tbe winter of 1892-93. Tbe new contract extended tbe time of performance “over the winter of 1893-94.” But it was therein expressly “understood and agreed between the parties to” that contract, that such extension should “in no way waive tbe rights of either party to said contract arising out of any breach of the conditions thereof.” Tbe contract of November 26, 1892, was breached by tbe failure of Baggs and L. Holman to perform during tbe winter following. If Clark E. Holman was liable on bis guaranty for such breach of tbe conditions of that contract, then tbe plaintiff’s cause of action therefor accrued upon tbe expiration of tbe winter of 1892-93; and by tbe agreement of December 2, 1893, it was expressly agreed that such right of action was not waived by tbe malting of such new contract. This action was not commenced until February 26, 1900, — more than six years after mating tbe new contract, and nearly seven years after tbe breach of tbe contract of November 26, 1892, for which it is sought to bold Clark E. Holman liable on bis guaranty. In tbe meantime tbe plaintiff bad taken a chattel mortgage to secure the repayment of such advances and tbe faithful performance of such contract, and tbe possession of tbe property covered by tbe mortgage. It is contended by counsel for tbe plaintiff that because tbe contract of November 26, 1892, was under seal, therefore any liability of Clark E. Holman upon bis written guaranty, not under seal, could only be barred by tbe twenty345 year statute of limitation. Sec. 4220. Of course, two or more persons may adopt a single seal, where they all sign the same instrument. Yale v. Flanders, 4 Wis. 96; Rollins v. Humphrey, 98 Wis. 66. The guaranty in question, though indorsed upon the back of the contract of November 26, 1892, was nevertheless a separate and independent contract. Tidioute S. Bank v. Libbey, 101 Wis. 196, and cases there •cited. There is no more ground for claiming that such guarantor adopted the seal of any of the makers of the original ■contract than there would be for claiming that a man who ■signs a note secured by mortgage thereby adopts his own ■seal on the mortgage. And yet there are numerous eases in this court where it has been held that personal liability on a note six years after maturity is barred, notwithstanding ■an action may be maintained to foreclose the mortgage given to secure the same. Wiswell v. Baxter, 20 Wis. 680; Phelan v. Fitzpatrick, 84 Wis. 249, and cases there cited; Duecker v. Goeres, 104 Wis. 37, and cases there cited. We must hold .that the cause of action against Clark E. Holman is barred by the statute of limitations. Subd. 3, sec. 4222, Stats. 1898. This makes it unnecessary to consider other questions discussed by counsel. . By the Oourt. — That portion of the judgment of the circuit court from which the appeal is taken is affirmed.