McFarlane v. Wadhams

KOHLSAAT, Circuit Judge (after stating the facts as above). The contract here in suit is a Wisconsin contract. After giving his terms, and acceptance thereof by defendant, plaintiff awoke to the fact that nothing had been said about time and, manner of payment, and thereupon, on May 17, 1906, wrote Tarbet, whom he knew to be general superintendent of the Milwaukee Leasing Company, to state how the same were to be met, and to have the payment assumed by Tarbet or defendant, as he did not know anything about the Milwaukee Leasing Company. To this letter defendant replied from Milwaukee, giving-two or three weeks after the mill was installed and put in operation as time for payment, and adding, “I will say that I will personally guarantee the payment of this bill by the Milwaukee Leasing Company,” thus complying with plaintiff’s request as to payment and guaranty. To this plaintiff replied, thanking defendant for that favor, and, while not objecting seriously to the time of payment, stating that he thought the time too long, and that he would be entitled to receive $1,000 when whole shipment was shown, and adding, “Trusting you may see your way clear to pay us that $1,000 at that time,” etc., clearly thus accepting the terms of defendant’s letter, and asking for-the favor of an earlier payment of $1,000. This request was in no way a condition imposed, but simply an appeal for the anticipation of the agreed time of payment. It is therefore apparent that the agreement was perfected at Milwaukee, and is, therefore, subject to the laws of Wisconsin. Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686. The Wisconsin statutes require that an agreement to become liable for the debt of another shall be void unless “such agreement or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged therewith.”- For the defendant it is insisted that the facts at bar fail to take the case out of the statute, for the reason that the consideration is not, as defendant [85] claims, expressed iu a writing signed by defendant. It will be observed that the statute does not in terms require that the consideration shall be expressed in the main document or agreement, but that it must appear “in some note or memorandum thereof” subscribed by the party charged therewith. Singleton v. Hill, 91 Wis. 51, 64 N. W. 588, 51 Am. St. Rep. 868. Nor is it necessary that the consideration for the undertaking should be stated in express terms. It is sufficient if it appear by necessary inference from the terms of the writings. Houghton v. Ely, 26 Wis. 181, 7 Am. Rep. 52; Miami Co. Nat. Bank v. Goldberg, 133 Wis. 175, 113 N. W. 391, 15 L. R. A. (N. S.) 1115, 126 Am. St. Rep. 967. Since, iu the present instance, no consideration is in terms expressed in the agreement of guaranty, it becomes necessary to consider all the facts, as disclosed iu the correspondence, which are relied upon by plaintiff to make a complete contract of guaranty. Some point is made by plaintiff as to defendant’s liability upon the original contract. While defendant, by the telegram of May 14, 1906, the letter confirmatory thereof of the same date, and the general circumstances attending the transaction, assumes to speak in his own name, nevertheless, plaintiff knew of his relation to the Milwaukee Leasing Company. He directed his correspondence to Mr. Tarbet, the superintendent of the company, and was aware of the fact that defendant was speaking for his company. We do not deem the position of plaintiff in this behalf well taken. The record, however, discloses the fact that defendant was placed in full possession of every step of the negotiations. He was advised that plaintiff was working- upon the mill, and that, as matters stood at the time plaintiff’s letter of May 17, 1906, was written, the Milwaukee Leasing Company, so far as the complaint discloses, was obligated to pay cash for the mill on delivery. The request for extension of time, and the guaranty, were parts of the same letter, made at the time when the contract was still executory. Plaintiff’s proposition in the letter of May 17th covered both the fixing of the time of payment and the guaranty. Here there was clearly a good and valuable consideration necessarily inferred. The facts are such as to take the case out of both the statutes of Wisconsin and Colorado. With reference to the giving of notes and the transactions incident thereto, it is the well-established rule of law that those acts did not constitute payment of the original account, or release defendant from his liability under his contract of guaranty. Matteson v. Ellsworth, 33 Wis. 488, 14 Am. Rep. 766; Willow River Lumber Co. v. Luger Furniture Co., 102 Wis. 636, 78 N. W. 762; Crocker v. Huntzicker, 113 Wis. 181, 88 N. W. 232; First National Bank of Pueblo v. Newton, 10 Colo. 161, 14 Pac. 428; Union Gold Mining Co. v. Rocky Mt. National Bank, 2 Colo. 565; The Kimball, 3 Wall. (70 U. S.) 37, 18 L. Ed. 50. The complaint offers to bring in the notes, and prays for judgment on the contract of guaranty. We are of the opinion that on its face the complaint states a good case, and the demurrer should have been overruled. The judgment of the Circuit Court is reversed, with directions to overrule the demurrer. .....