Chandler Lumber Co. v. Radke

. The following opinion was filed October 20, 1908: Dodge, J. Error is assigned upon the holding of the trial court that the shipping of the lumber so that the purchaser, Schutte, could not obtain it at Madison except by paying the freight charges thereon was a departure from the terms of the contract, and evidence was offered to prove a custom to so ship lumber even under a contract for its delivery free on board at its place of destination. The court’s ruling in this respect must be approved. The expression “free on board” in a contract like this is not ambiguous and therefore not open to construction either by proof, of custom or otherwise. Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820; [498] Fromme v. O’Donnell, 124 Wis. 529, 532, 103 N. W. 3. “Free on board cars, Madison,” means tbat tbe plaintiff, in order to perform its contract, must deliver tbe lumber on board cars at Madison, Wisconsin, free to be taken by tbe purchaser without any obstruction, burden, or impediment. It is not so delivered when, in order to take it into bis possession, be must discharge a lien thereon for freight. But appellant further contends that, even though this were a departure from the terms of the contract, the surety is not thereby discharged, for that the variation was not prejudicial to him, since Schutte received credit for the amount of freight which he paid and thereby reduced the indebtedness for which the defendant as surety was liable. • It is elementary that a surety is favored in the law. As he ordinarily does not receive the benefit of the contract, but is a mere volunteer, he has a right to define exactly the conditions upon which he shall be responsible for the debt of another, and only upon compliance with those conditions can he be held to such liability. 1 Brandt, Suretyship (3d ed.) § 427; W. W. Kimball Co. v. Baker, 62 Wis. 526, 22 N. W. 730; Stephens v. Elver, 101 Wis. 392, 77 N. W. 737; Cowdery v. Hahn, 105 Wis. 455, 81 N. W. 882; Electric A. Co. v. U. S. F. & G. Co. 110 Wis. 434, 85 N. W. 648; Omaha Nat. Bank v. Johnson, 111 Wis. 372, 87 N. W. 237; Charley v. Potthoff, 118 Wis. 258, 265, 95 N. W. 124. While this rule was originally enforced with entire strictness, it is now subject to certain exceptions, among which the only one claimed to be relevant to the present situation is set forth in Stephens v. Elver, supra, namely, if the variation appear to be wholly immaterial and without prejudice to the surety’s rights it will be ignored. Of course the principle remains that the surety may determine and specify the exact terms upon which he will be liable and has a right to stand upon those terms, and it is only when a court is able to say with certainty that an expression in the contract apparently de499 daring a condition of siicli liability is so immaterial to him and departure therefrom so necessarily without prejudice that it cannot believe in an intention of the parties to express, it as a condition of liability does the above noted exception apply. In the instant case, while the reduction of Schutte’s indebtedness by the amount of the freight probably would be beneficial rather than injurious to the defendant under most circumstances, yet, when we remember that it was made to appear that Schutte was engaging in the business of a building contractor almost wholly without means of his own, and his ability to pay for the materials and labor in any given piece of work depended upon his completion thereof and consequent receipt of the contract price, which, as we know, is usually in large part withheld pending such completion, it becomes apparent that any obstacle placed in the way of speedy completion enhanced the danger of his becoming involved by pressing indebtedness and the interruption of his work by creditors. It cannot be doubted, therefore, that the provision for sixty days’ credit upon the lumber which entered into these two building contracts, amounting to about $2,000, was of the greatest importance in promoting the probability of his success and consequent ability to meet debts. To that end, even a small amount of cash might be very important, and the deprivation thereof seriously prejudicial. The $150 which he was obliged to pay in cash in order to obtain these materials might well hqve enabled the hiring of labor or the purchase of such mar terials as he could not obtain upon credit and which were necessary to the completion of the work. We are therefore brought to substantial agreement with the trial court on the proposition that the requirement that Schutte pay about seven per cent, of the price of .this lumber in cash instead of upon a credit of sixty days was a departure from the terms of the contract which we cannot say with any degree of certainty was immaterial' or without' prejudice to the surety. [500] If Schutte, as appears to have been the case, assented to this modification, the contract was changed without the consent or approval of the surety. If he did not consent, the plaintiff has failed in the performance of its contract in a respect material to the surety’s promise, which in either case, is not enforceable. W. W. Kimball Co. v. Baker, 62 Wis. 526, 531, 22 N. W. 130; Charley v. Potthoff, supra; Walrath v. Thompson, 6 Hill, 540. As this conclusion must result in affirmance of the judgment, no discussion of the sufficiency of the other grounds upon which it rests need be indulged. By the Court. — Judgment affirmed.