Weil v. Schwartz

Philips, P. J.

— I. The errors assigned for reversal of this judgment arise on the action of the trial court in giving and refusing instructions. The first and fourth instructions given for plaintiffs are objected to, inter alia, because of the employment of the words : “ was not worthy of a credit,” “ or knew that he was unworthy of a credit.”

*380 It must be kept in mind that this action is based solely on the written correspondence between the parties, and that defendant’s liability must spring from the assurance contained in his telegram. Conceding that the telegram should be read and interpreted in connection with the letter of inquiry, it will be seen that the only inquiry made by plaintiffs was whether Isaacson was “good” for a bill, say of five hundred dollars, on four months’ time. The answer employed the same word : “ I consider him good for all the goods he wants.”

What meaning, then, does the law attach to the word “good,” as here employed? We are not left wholly to speculation in such an inquiry. Among the well recognized rules in the construction of contracts, as to particular words and phrases therein, is, that they are to be taken in their obvious meaning and ordinary acceptation in the community. And if they have acquired, among a certain class of persons or tradesmen, any different or special signification they are to be so applied by the court in construing the contract. But this latter rule involves an element and an issue of fact always to be found by a jury, and then to be applied by the court.

I take it to be beyond controversy that, when one man inquires of another whether A is good for a bill of goods, it implies, of course, that he is to obtain them on a credit, if at all, otherwise there would be no occasion for the inquiry. And I take it to be, further, as palpable that the inquiry has reference only to the financial responsibility of the debtor, and the ability of the creditor to make his debt by legal process in the ordinary form. It would be a strained and unusual meaning to attach to the inquiry that it referred to the moral character and trustworthiness of the party. To ■say “that the note of A is good” implies “that the maker is solvent, and that the amount can be collected by due course of law.” Cooke v. Na *381 than, 16 Barb. 344. So in Hammond v. Chamberlain ( 26 Vt. 406 ), where the defendant indorsed a note: “Ihereby guarantee this note good until January 1, 1850,” it was said by the court: “ It is an obligation on his part having relation, merely to the solvency and ability of the makers to pay the note; in other words, the defendant agreed that during the period mentioned in the guaranty, the makers of the note should be in that condition, that payment of the note could be enforced! against them, if legal diligence was used for that purpose. The note was good, if during that period they had the means of payment, or if payment could be enforced by legal measures.”

The plaintiffs did not ask information of defendant as to the trustworthiness of Isaacson, as to his integrity of character, or business habits; but they ask is he good for such a debt; can it be made in the ordinary course of law; should they give the credit 1

The defendant answered according to the inquiry : I consider him good. How can the court add another word or another meaning to the term employed ? The defendant had a right to choose the language in which he would make answer ; and the court has no more right to extend its operation and meaning than it has to make a contract for the parties.

If the meaning of the word employed was doubtful or ambiguous the court might receive extrinsic evidence to goto the jury to aid in the construction. Hutchison v. Barker, 5 Mees. & W. 535. “ And where it is doubtful whether a certain word was used in a sense different from its ordinary acceptance, it (the court) will refer the question to the jury.” Simpson v. Hargitson, 35 Leg. Obs. 172; Bunce v. Beck, 43 Mo. 380 . And in Edwards v. Smith ( 63 Mo. 127 ), Napton, J., announces the same doctrine. So, if in this case, the word “good” was used by defendant in the more extended sense asserted in the instructions, it presented a question of fact that should have been submitted to the jury. *382 Whereas, the court declared, as matter of law, that the ■word “good” implied more than Isaacson’s solvency .and financial responsibility, and embraced also trustworthiness, which implies “worthy of trust or confidence.” (Web. Dic.)

Under this instruction, although the jury may have believed from the evidence that defendant did honestly believe, at the time he sent the telegram, that the debt ■could be made out of Isaacson’s property by law and, that he was perfectly solvent, yet, if he had reason to believe that Isaacson was untrustworthy, not entitled to confidence, the defendant was still liable for the debt. The position is not defensible. The instructions were hurtful, .and ought not to have been given.

II. The second instruction given on behalf of, plaintiffs is faulty in that it told the jury: “The fact that defendant offered to guarantee the debt of the plaintiffs for ten per cent, thereof, does not defeat a recovery in this case,” etc. This was a commentary on the evidence. It singled out a particular fact, an element of proof bearing on the question of defendant’s good faith in making the assurance, and told the jury it did “not defeat a recovery in this case.” It was for the jury to respond to its probative force ; and the defendant was entitled to have it considered by the jury, in connection with all the facts and circumstances in proof. Jones v. Jones, 57 Mo. 138 ; State v. Smith, 53 Mo. 267 .

III. The third instruction is objected to by appellant, because it authorized the jury to allow interest ■on the account from the time it was due. The account became due on the twenty-eighth day of June, 1882. Unquestionably had the plaintiffs sued Isaacson, the principal debtor on this account, interest would have been allowable only from the day of demand of payment. Rev. Stat., sect. 2723; Richardson v. Laclede Co., 76 Mo. 68 ; Sutherland v. Ry. Co., 61 Mo. 89 . The plaintiff can certainly have no greater measure of relief *383 .against the party whom the law substitutes for the principal debtor than he could have against the latter. There was no proof of demand prior to the institution of suit, which was on the twenty-eighth day of September, 1882. It is apparent that the jury allowed interest from the twenty-eighth day of June. This was error.

IN. The fourth instruction is further objected to by appellant, because in determining the issue as to whether plaintiffs were induced to give the credit, the jury were authorized to take into consideration the telegram “in connection with what had previously transpired between plaintiffs and defendant.” This had reference, admittedly, to the circumstance, developed in evidence, of one of the plaintiffs, some time prior to the correspondence, meeting defendant in Kansas City, and in the course of the conversation defendant stated to plaintiff that Isaacson was about to embark in business in Kansas City, and was engaged to be married to his sister-in-law; and that upon the consummation of the marriage his mother-in-law would give bim fifteen hundred dollars.

Plaintiffs claim that this statement was false, and was fraudulently made to induce plaintiffs to give Isaac-son credit. The objection to this part of the instruction is, that it authorized the jury to consider mere verbal assurances as a basis for plaintiffs’ reliance in giving the ■credit, whereas the statute (sect. 2515, Rev. Stat.)-declares, that: “No action shall be brought to charge any person upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any other person unless such representations or assurances be made in writing, and subscribed by the party to be charged thereby,” etc.

I should have felt no hesitation in pronouncing this declaration of law to be in conflict with the letter and spirit of the statute, but for the authority of Talton v. Wade (18 C. B. 371; 86 Eng. Com. Law Rep.) the syllabus of which would seem to give color of authority for the *384 instruction. But a careful reading of the case has satisfied me that it does# not support the respondent, to say nothing of its abstract soundness. The facts of the case were, briefly, that one Case, who proposed to hire of plaintiff certain furniture, made to her certain representations concerning his employment and salary, and gave the defendant as reference. Thereupon plaintiff addressed defendant a letter of inquiry as to the truth of the statement, and requested defendant, if they were reliable, to guarantee the rent. Defendant made answer by letter, avouching the truth of the representations, but declined to guarantee the debt. This did not seem to be satisfactory to plaintiff, who then called in person upon defendant, and in the course of the interview the defendant made verbal assurances of the most positive character as to Case’s reliability and statements. At the trial the plaintiff testified that she relied upon the verbal statements made to her by defendant in closing the contract with Case. Upon re-examination she so far rectified this as to say that she also relied upon defendant’s letter, and would not have let the furniture but for the letter. The trial judge charged the jury, that from the evidence the inducement to the contract rested partly upon the verbal statements, and partly upon the letter; “ but that if they were of the opinion that the plaintiff was substantially and mainly induced by the .letter to part with her furniture, the plaintiff was entitled to a verdict. ”

The common bench sustained the charge on the ground, that although there were verbal representations conspiring with the letter to induce the assent of plaintiff, yet, if she substantially relied on the letter, the defendant ought not to escape the responsibility of the written assurance, which substantially produced the injury. It may be conceded, for the purposes of this cause, that under the state of the proofs there, the plaintiff was entitled to go to the jury on the question whether she relied on the letter or the verbal representations as the *385 prime inducing cause. But that is not this case; and I am persuaded that the doctrine of that case is so suggestive of a mischievous precedent that I am unwilling to extend it in the least degree. The instruction in the case at bar simply told the jury that they could consider both the telegram and what had previously transpired verbally in determining the inducing cause. There is no qualification whatever. The jury were not advised on the authority of the case, supra, that if there had been verbal representations made by defendant conspiring with the letter to induce the credit, yet, before the plaintiff could recover, the jury must believe that plaintiff mainly and substantially relied upon the telegram. If the verbal statements had an influence upon the mind of the plaintiffs, the defendant was entitled to the benefit thereof, and to any advantage in argument springing from this circumstance. If he could persuade the jury that plaintiffs in extending the credit relied mainly and substantially on the verbal representations rather than the telegram, the converse of the proposition would follow, that the plaintiffs could not recover. But the instructions, as framed, did not embody this principle. It cut the defendant off entirely, and, without regard to the question of the main and substantial fact on which the plaintiffs relied, told the jury, in effect, that plaintiffs could rely on one in connection with the other, i. e., on both taken together.

This, it does seem to me, would practically nullify the statute. The history of the first enactment of this statute by the English parliament furnishes'most persuasive proof that its design and purpose were to cut up by the roots the great evil of the frequency and success of such actions based on mere loose verbal representations, by requiring the action to depend exclusively on the written undertaking, duly signed, by the party sought to be held. See Lyde v. Branard, 1 M. & W. 101; Parke B.; 1 Smith’s Lead Cas. (4 Ed.) 144-146; *386 Savage v. Jackson, 19 Ga. 305 . As said by Benning, J., in the case last cited: “When a statute says that a promise to answer for the debt of another, shall not bind, does it not say that any less thing shall not bind?” I ■cannot understand how, under this statute, if a part may rest upon a verbal representation, why the whole may not. If a part may be verbal and a part in writing, how much of each is essential to make the sum total of the causa injuria ? Where shall the dividing line be drawn ? The ■tendency of such a rule would be to invite the substitution of judicial discretion, and the caprice of the triers of the fact, for the more certain and explicit rule of the statute, until by imperceptible strokes of the keen blade of judicial construction, in ready hands, the purpose of the statute would either be whittled away altogether, or :so weakened as to afford little protection against the very evil Lord Tenderden sought to uproot.

Again, the petition in this case counts expressly and alone upon the written telegram as the inducing cause. To predicate, therefore, a right of recovery, in whole or part, in an instruction on another conspiring cause was, under our system of pleading, a clear departure. Kenney v. Ry. Co., 70 Mo. 252 ; Price v. Ry Co., 72 Mo. 414 ; Bell v. Ry. Co., 72 Mo. 50 ; Benson v. Ry. Co., 78 Mo. 504 ; State v. West, 21 Mo. App. 309 .

VI. W e think the third instruction asked by defendant should have been given. It contained a correct proposition of law as applied to the facts of this case. Gage v. Lewis, 68 Ill. 604 -615; Avery v. Chapman, 62 Ia. 144 . On a re-trial the instructions can easily be reformed in conformity with this opinion.

Ellison, J.; concurring, the judgment of the circuit* court is reversed and the cause remanded; Hall, J., absent.