Bryant v. Crosby , 36 Me. 562 ( 1853 )

Shepley, C. J. —

It is insisted in defence, that the contract made on Nov. 30, 1847, constituted a bailment and not a sale of the property.

No option was given to Morrill upon any contingency to return it; and none to the plaintiff to reclaim it, except upon the failure of Morrill to make the payment or to retain possession. The contract therefore provided not for a bailment but for a conditional sale.

It is also insisted, that it contained a warranty by the plaintiff, that the sheep were at the time of sale “ in good order and condition.”

It was not signed by the plaintiff. The engagements were not made by him, but to him. He entered into no warranty. The idea is presented by those words to both parties, that the sheep were in that condition; and that is equivalent to a representation, that they were. It being regarded as a representation made by him, the plaintiff would be guilty of fraud, if he then knew that they were not in that condition.

The jury were instructed, "that they would look at althe evidence and see if Bryant made any representations to Morrill, that were untrue, and if he did, although Morrill saw the sheep and selected them, it would discharge the surety.”

A surety cannot be discharged on the ground of fraudulent representations made to his principal, except when that principal would be. The plaintiff eould not in law be considered as conducting fraudulently, unless he knew that the representations were false. To make him lose his security, because his representations were untrue, when he did not know them to be so, is to impose upon him the risk of a warrantor.

A fraudulent concealment of facts from his principal, would not necessarily have the effect to discharge the surety; while he would be relieved so far as his principal would be.

A concealment, which entirely discharges a surety, is one of facts known to the other party and not known to him, and known to be of a character to materially increase the risk beyond that assumed in the usual course of business of that kind, having a suitable opportunity to make them known to the surety.

Respecting these matters the instructions were too favorable to the defendant.

Three indorsements had been made upon the contract, of wool received in part payment after the time, when the payments should have been made. The price of wool might have been quite different at the times when it was delivered, and when it was by the contract to be delivered. After the actual delivery and indorsement of it the principal parties agreed upon the amount remaining due upon the contract,- and that was indorsed upon the back of it and subscribed by Morrill. They had a right to adjust the matter respecting the price to be allowed for the wool, according to their own pleasure, although the effect of those indorsements might be different from what they would otherwise have been. When they had thus made an adjustment, neither party could be relieved from it without proof of some error, mistake or fraud in making it. There being no such proof, the jury were instructed to find what would be due on the contract, according to a mode of reckoning stated, without regard to that settlement made by the parties. The mode prescribed was less favorable to the defendant than the adjustment. In this there was error, and for this cause a new trial must be granted.

As the same questions may be again presented, arising out of the sale of property from Morrill to the plaintiff on August 26, 1850, and the indorsements upon that contract, a new trial may be prevented or facilitated by an opinion upon its effect.

It is in form an absolute sale of the property described. Parol testimony cannot be received to vary it and give to it the effect of a mortgage. There is nothing found in it stating or indicating, that the property or the price of it was received in part payment of the contract made on November 30, 1847. It states, that the consideration had been already paid by the plaintiff to Morrill, leaving the inference, that it was a transaction having no connexion with the sale or payment for the sheep.

It is only by the reception of parol testimony, that proof can be made that the consideration had not been in fact paid, as it purports to have been. The contract is not under seal and there can be no legal objection to the admission of such testimony. It is only by the like testimony, that the defendant can prove that the property, or the agreed price of it; was to be applied in payment of the first contract; and if such testimony be admitted, it follows, that it must be to prove to.what extent property has been received and not paid for, and to be so applied. Such testimony may be received, for it will not vary the terms of the written contract. A surety, by such testimony, cannot claim to have more so applied than his principal could. If the first contract were otherwise paid, Morrill could not recover by virtue of the last payment for hay, wheat, or oats, without proof of their delivery to the plaintiff; for by the contract they were in the charge and at the risk of Morrill. Parol testimony might also be received, to prove that the property, or the price of it, received on Dec. 21, 1850, was to be applied in payment of the first contract.

Exceptions sustained, verdict set aside, and new trial granted.

Tenney, Rice and Hathaway, J. J., concurred.