Wheeler & Wilson Manufacturing Co. v. Laus , 62 Wis. 635 ( 1885 )

Cassoday, J.

Exception is taken because the court precluded Laus, while testifying in his own behalf, from answering this question: “Erom whom did you expect to get the difference between the schedule price and the amount named in the lease to be paid by the lessee therein for the machine, after you had turned the lease over to the company?” The rights of the defendants as to the matter involved in the question were fixed by the terms of the contract, and could not be changed or modified by the expectation of the witness. The question, was, therefore, properly excluded.

It is claimed that the referee and the court improperly allowed the plaintiff six dollars for wagon rent under the first contract. That contract was in the form of a proposition from Laus to the plaintiff and accepted by the latter. In that proposition are these words: “ If I order any wagons from you, I will pay for the same, or for the use thereof, according to the terms mentioned in the order, or as we may agree upon from time to time in writing.” In the order for the wagon, Laus agreed to pay one dollar per week rent, with this condition: “You are to allow one dollar deduction from the wagon rent for any term for each machine for which I pay you during that term- but no deduction on account of machine paid for in any other term.” It was found by the referee that during the term of ten weeks while Laus so used the wagon, he only paid in full for four machines, and hence, by the express language of the order, was only entitled to a rebate of four dollars therefor, which he received. Ve cannot disturb the findings in this respect.

It is urged that the machines received by Laus under the second contract were so received and disposed of by him as agent merely, and that the several leases which he took therefor ran to and were the property of the plaintiff, and hence that the notes thereafter given by Laus to the plaintiff for the same machines were without consideration, and therefore void.

The personal liability of Laus for the machines so shipped and disposed of, or upon the notes in question, which is the same thing, depends upon the language of the contract. This contract, like the other, was in the form of a proposition from Laus to the plaintiff, and accepted by the latter, and contained this clause: “I will make return for all machines ordered within four months from date of shipment, and will make prompt returns as fast as sales or leases are made, remitting cash for all machines disposed of, except those leased or sold on monthly instalments, and will pay for those one third in three months and one third in six months and one third in nine months from date of sale or lease, with interest from said date at eight per cent, per annum, and will, at time of lease or sale, send my notes for the same in accordance with these terms, and will if you desire, at any time, assign and deliver as security to you said leases or instalment accounts. I will pay you at the prices and according to the terms contained herein and in the schedule of prices signed by me, or according to terms we may agree upon from time to time in writing. ... I do not expect the privilege of returning the machines to you.” The schedule annexed, and made a part of the contract, gave the prices of the different styles and sizes of machines, and provided that “ notes sent for leased machines are to draw eight per cent, interest, and are to be made according to the following terms: If notes are received within thirty days from shipment of machine, four per cent, is to be discounted from the price of machine; if within sixty days, three per cent.; if within ninety days, two per cent.; if within 120 days, one per cent.”

Ey this contract we are constrained to believe that Laus made himself personally liable for all machines received by him from the plaintiff thereunder, with a privilege on the part of the plaintiff, under a clause of the contract not quoted, to retake all machines on hand whenever it was considered for the interest of the plaintiff not to have its machines sold by Laus. Laus, being, personally liable to the plaintiff for every machine for which he took a lease, as well as those which he sold, there would seem to be no good reason why he should not be held personally liable for the notes given by him to the plaintiff on account of such leased machines. Of course, if the plaintiff accepted any of such leases in full satisfaction and discharge of any of the notes given therefor, that would operate as an extinguishment of such notes pro tanto. So, if the plaintiff collected from the makers the amount of any of such leases, such collections would be available to the defendants by way of recoupment upon the notes. But Laus was, nevertheless, primarily liable under the contract and the notes. This personal liability was obviously to secure the plaintiff from loss through any irresponsible person to whom Laus might deliver such machines and take leases therefor. Certainly there is nothing in the law to prevent Laus from fastening upon himself by express written contract such primary liability. It is equally certain that the creation of the agency, the shipments and right of disposition of the machines, were valuable considerations for each of such promises. Neither courts of law nor equity are inclined to disturb contracts for mere inadequacy of consideration, whether it be of benefit to the promisor or injury to the promisee. Earl v. Peck, 64 N. Y. 596; Cummings's Appeal, 67 Pa. St. 404. We must therefore hold that there was'a sufficient consideration to support the notes in suit. There was nothing in the wording of the leases, nor the action of the plaintiff in relation to them, to do away with Laus's primary liability.

In a case tried by the court, the improper admission of evidence is not available as error on appeal. We find no material error in the record.

By the Oourt.— The judgment of the circuit court i» affirmed.