Wilson v. Edwards

By the Court—Miller, P. J.

The action was brought against the defendant as surety of one Daniel Van Vranken, upon a contract made by the plaintiffs with him, by which he agreed to make sales for them of hay, straw and country produce, for which he was to receive not more than four per cent upon the amount of sales of produce other than hay, and for hay, not more than seventy cents per ton. Van Vranken was also to render an account of the sales made by him, and to pay over the same to the plaintiffs.

The justice, in granting the motion for a nonsuit, put his decision upon the ground that the evidence was undisputed that the plaintiffs did make an arrangement with Van Vranken, by which he was to become responsible for the hay, to recover the value of which the action was brought, at a specific sum, and that this being a variation from the original contract, the plaintiffs were not entitled to maintain the action. In cases of suretyship, the contract cannot be extended. Any material change will exonerate the surety from liability, and if the view taken of the testimony was correct, then the nonsuit was properly granted. The question involved is not free from embarrassment, and to determine it properly it is essential to examine the testimony given upon the trial. The plaintiff Wilson testifies that Van Vranken came into their office and said he could sell to parties in Boston, or had made a bargain with parties in Boston, and they would take this hay at $13.50 a ton, and no allowance for weight or wood. Gillespie was then called in, and, after talking the matter over, it was agreed that the hay should go in that way. Gillespie corroborates this version of the matter, and testifies that nothing was said about any commissions. It appears, from this evidence uncontradicted, that it was understood that Yan Yranken was to account to the plaintiffs for the hay at a stated price, and there is no testimony which establishes a different state of facts, as to the price. Wade testifies that, in April, 1870, Gillespie told him that Yan Yranken had bought the hay, and, in answer to a letter written by him, Wade, in which it was stated that Yan Yranken had said he bought the hay of them at $13.50 per ton, plaintiffs wrote “Yon Yranken was here last week and said he would take all the hay, good, bad and indifferent, at $13.50 per ton, our weight, and no deduction for wood.” Another witness, Hoyt, testifies that Gillespie stated to him that he had sold the hay to Yan Yranken and he hoped he would do well with it.

It also appears that, on the 25th of April, Gillespie went to Boston and obtained from Yan Yranken a statement, which, at Yan Yranken’s request, Gillespie made out, of all the hay which the plaintiffs had sent to him, Yan Yranken. In the first part of this statement the hay is entered at the weights and prices for which sold, and Yan Yranken credited for freights paid, and commissions at the rate of seventy cents per ton, while the last, being the thirteen tons in controversy, it is entered at plaintiff’s weights at $13.50 per ton, with no credit for commissions or freight. Here, clearly, was a waiver of the commissions and an acknowledgment as to the terms upon which the hay was forwarded to Yan Yranken. By this statement both parties conceded that the hay was to be accounted for at $13.50 a ton, although sold at a higher price, and the plaintiffs did not claim that Yan Yranken should account for the excess of thirty cents a ton over and above the account of commissions which he actually received. Another statement made by Yan Yranken of the amount due, which was accepted by the plaintiffs, shows the amount of Yan Yranken’s indebtedness at $1,111.78, and which was claimed of him, is on the basis of $13.50 per ton for the hay in controversy.

From the foregoing summary of the leading facts, it is manifest, I think, that there was a material variation of the original contract by which Yan Yranken took the hay at the price agreed upon, and without any regard to commissions, and I am unable to discover any question of fact which should properly have been presented to the consideration of the jury.

As to the three car loads of hay first sent, the judge on the trial remarked that, as to them, no separate demand was made. Whether the judge was right in this respect is not material, for the evidence shows that it was agreed upon that they should go in with the residue of the hay. They were put upon the schedule at the same price, permitted to remain there, and the amount of Yan Yranken’s indebtedness calculated at the same price, without any regard to -the price for which they were sold, or to the amount paid for freight or commissions, or any deduction for wood or short weights.

As the case stood, I think that the nonsuit was properly granted, and no error was committed in refusing to allow the plaintiffs’ counsel to go the jury.

A judgment must therefore be ordered for the defendant, with costs.

Judgment affirmed.