Bryant v. Hagerty ( 1878 )

Mr. Justice Sharswood

delivered the opinion ‘ of the court,

Bryant & Euwer, the defendants below, had a contract in writing with Wheeler, by which the latter agreed to stock and run in the manufacture of lumber a saw-mill of Bryant & Euwer, on lands belonging to them in Elk county, to run and deliver the lumber to market at his cost, expense and risk. Bryant & Euwer were to have forty per cent of the market value of the lumber and twenty per cent, of the shingles, and deducting also “all advances in money or otherwise” made by them from the proceeds, the balance was to be paid to Wheeler as “his consideration in full for the fulfilment of the obligations imposed upon him.”

Wheeler drew the draft in suit upon Bryant & Euwer in favor of the plaintiff below, and the evidence was that they verbally accepted it. At that time Wheeler was indebted to them for advances previously made. The order or draft was to “pay J. H. Hagerty all moneys due or to come due to me for manufacturing lumber, being sixty per cent.” of the lumber, and “all amounts due me for shingles delivered to you under our contract, being eighty per cent, of the market value.” It will be seen that it referred expressly to the contract, and in effect incorporated it with the draft. It is clear that it was only for the amount due upon the contract, and that was all which the defendants, by their acceptance, undertook to pay the plaintiff. Whether Hagerty knew of the terms of the contract or not he had notice of it, and took the acceptance subject to its terms. The recital of the per centage of the lumber and shingles to which the drawer was entitled did not change the material stipulation that such amount was to be subject to deduction for advances. In that respect the case does not differ from the terms of the draft in Gillespie v. Mather, 10 Barr 28, which were, “ When in funds from the sale of produce in your hands.” It was said by Mr. Justice Bell, in the opinion of the court in that case: “The phrase ‘when in funds,’ as here used, is equivalent to ‘when in debt to the drawer,’ -which, by reason of the factor’s right of appropriation, cannot be while the principal is indebted to the factor. In entering upon such an engagement as this, it cannot be supposed the latter intended to pay the debts of others in preference to his own. This would be in the teeth of the general course of business, and, therefore, a construction not to be adopted, except under the coercion of plain manifestation, which has no existence here.” In the case now before us it is not necessary to resort to construction to reach this result, for the order is express to pay “all money due or to come due to me,” which words are synonymous with “ when in debt to the drawer.”

It follows, then, that the defendants below were entitled to an unqualified affirmance of their first and second points. In the answer to the second point the learned court below appeared to think that the' question of the defendants’ liability for the full amount of the per centage depended upon the plaintiff’s actual knowledge of the provisions of the contract between the drawer and acceptors, instructing the jury in effect that if he had no knowledge — and the acceptance was general — it was not subject to deduction for the advances. But the draft on its face gave notice of the existence of the contract, and he clearly was bound to inquire as. to its terms. The defendants could not be made liable beyond the terms of their written engagement by the acceptance of the draft, without evidence to vary it, which we do not see on the record. It follows also that the court committed an error in affirming the first point of the plaintiff, and in leaving it to the jury to decide whether the defendants, by saying that the draft was satisfactory, meant “ that sixty per cent, of the lumber and eighty per cent, of the shingles should be paid unconditionally and without regard to the accounts between Bryant & Euwer and Wheeler; or did it mean that having seen Wheeler and the order was correct that they would pay according to the terms of the contract.” This was submitting to the jury the construction of a written instrument which is exclusively the province of the court.

Judgment reversed, and a venire facias de novo awarded.