Bremer v. Rufener

Owen, J. It will be noticed that the bond upon which this suit was predicated was executed on the 13th day of February, 1919. By its terms the defendants became liable to the patrons of Fred Pfarrer who delivered milk at his cheese factory. There is no time expressed during which such liability is to continue. Appellants contend that the term of the bond was for but one year. This contention is founded on the premise that the contracts between Pfarrer and his patrons were oral, and that under the statute of frauds they were void unless to be performed within a year. The bond does not assume any such contracts between Pfar-rer and his patrons. It assumed that Pfarrer would buy the milk offered by his patrons from time to time and does not contemplate any contracts between Pfarrer and his patrons for the delivery of milk during any particular period of time. The bond contemplates a series of transactions between Pfarrer and all those who may bring milk to his factory, and obligates the defendants to pay the agreed price thereof if Pfarrer does not. It is a continuous contract, and the bond itself contains no limitation upon the period of defendants’ liability. Under such circumstances the sureties may terminate their future liability by giving definite notice that they will not be bound by such obligation after a given future date, which must be reasonable in point of time under all the circumstances. Emery v. Balts, 94 N. Y. 408; Jeudevine v. Rose, 36 Mich. 54; Ricketson v. Lizotte, 90 Vt. 386, 98 Atl. [198] 801; North British M. Ins. Co. v. Kean, 16 Ontario Rep. 117. The appellants contend that a notice sufficient to terminate their liability under the-bond was given. Whether such notice was given was a question of fact litigated upon the trial ánd found against the appellants. Their testimony is by no means clear that they definitely notified the plaintiff that'they would not be liable on this bond after the 1st day of March, 1922, while the plaintiff specifically denies that they expressed any such attitude. The trial court found that they did not give such notice, and we cannot disturb this finding. Appellants rely upon the letters written by the attorney to Pfarrer, set forth -in the statement of facts. These letters do not definitely state that they will not be bound on this bond after the 1st day of March, and the fair inference therefrom is that appellants themselves did not at that time construe their prior conversations or negotiations with the plaintiff as amounting to such definite notice. The letter of February 16th simply calls upon the plaintiff “to take this matter up at once with Mr. Pfarrer and with the directors of your factory and see that some arrangements are made before the 1st of March, 1922,” while the second letter concludes: “Unless the proper arrangements are made to release these parties we shall take the necessary steps to obtain their release, and I shall expect to hear from you soon.” The effect of these letters is to make release of the appellants from future liability on the bond dependent upon the action of the obligees. They simply call upon the patrons of the factory to take proper action to release them from future liability. This does not amount to the definite and unequivocal notice requisite to terminate their future liability. This' conclusion makes it unnecessary for us to consider whefher the contract upon which this action is predicated is one of suretyship or guaranty, or whether there is any differ [199] ence between the right of a surety and a guarantor to thus terminate future liability, questions argued in the brief of respondent, as in no case can that liability be terminated by a notice falling short of the requirements above indicated. By the Court. — Judgment affirmed.