Gilbert v. Moline Plow Company/Opinion of the Court

This is a writ of error to the supreme court of the territory of Dakota. The action was brought by the Moline Plow Company, as plaintiff, against Herman Gilbert and Jacob Schartzel, defendants. It was tried before a jury, and verdict rendered for the plaintiff. This judgment, on appeal to the supreme court of the territory, was affirmed.

The suit was founded on the following instrument in writing, signed by the defendants:

'SIOUX FALLS, D. T., March 9, 1878.

'Moline Plow Co., Moline, Ill.-SIRS: We, the undersigned, are     acquainted with Peter Gillman, of this place, (formerly of      Fond du Lac, Wis.,) and have no hesitation in indorsing him      as an honest, capable business man, and deserving of      confidence and credit. We think your informant, in regard to     Mr. Gillman's business ability and capacity, was in error, if      not selfish and malicious. We will satisfy all orders Mr. Gillman gives this spring, such as plows and cultivators.

WM. B. DICK.

'H. GILBERT.

'JACOB SCHARTZEL.'

It seems that on January 21, 1878, Peter Gillman had sent an order to the Moline Plow Company requesting them to forward him certain goods in which they were dealing, and specifying the terms of payment, with which they declined to comply, on the ground that they were not sufficiently advised of his responsibility. After obtaining the above instrument, signed by the defendants, Gillman inclosed it to the plow company with the following letter:

'SIOUX FALLS, D. T., March 9, 1878.

'Moline Plow Co., Moline, Ill.-SIR: Will you accept my order     under the recommend inclosed? If so, ship me the breakers as     ordered; also the cultivators, and about 6 vibrating harrows. Hoping we will get better acquainted. I am sorry about such a     report as stated to you, and I know you will think so much more of me. (Too     late in season for harrows.)

'I remain, yours,

PETER GILLMAN.

'If you accept my order, please ship the goods at once, and     oblige.

'P. G.'

The plaintiffs accepted the guaranty, notified Gillman that it was accepted, and forwarded the goods. The dealings between these parties under this guaranty continued during the spring, the last shipment being made about May 24, 1878. On July 28th following a settlement was made, and for the balance found due from Gillman to plaintiffs two notes were given, one payable September 15, 1878, and the other November 15, 1878.

An attempt was made by the defendants to show that credits were given in this transaction which released them from the liability of their letter of credit or guaranty. To establish this they insisted that the original order given by Gillman in January was to be taken as a part of or an explanation of their letter of credit. The court held that the letter of credit was complete within itself, and that the defendants could not import into it, by parol, any additional agreement as to the time and character of the credit to be given to Gillman, and instructed the jury to that effect. This is the principal error relied upon to reverse the judgment, which we think is no error.

The instrument sued on contains no reference to the previous letter of Gillman to the plow company, no any restriction as to the terms on which they held themselves liable for his orders, except that they shall be given 'this spring.' The language used is, 'We will satisfy all orders Mr. Gillman gives this spring, such as plows and cultivators.' The letter from Gillman dated March 9th, referring to his previous order, is in fact a new order of that date, and evidently made under and in pursuance of the guaranty of the defendants. All the goods delivered to Gillman by the plaintiffs for which suit is now brought against the defendants were delivered during that spring, and were delivered after the receipt of this guaranty. The court was right, therefore, in not permitting the defendants to explain or qualify that guaranty by the parol testimony which they offered. Nor do we see anything in the testimony, as found in the bill of exceptions, to discharge the defendants from the obligation incurred by the letter of credit or guaranty, whichever it may be.

An error is assigned by the brief on the admission in evidence on the part of the plaintiffs of a letterpress copy of a letter of the Moline Plow Company to Gillman, signed by Lobdell, the witness, on the part of that company. It is a reply to the letter received from Gillman of March 9, 1878, inclosing the guaranty, and reads as follows:

'Peter Gillman, Esq., Sioux Falls, D. T.: Yours of the 9th is     at hand, and satisfactory. We will ship your goods in a day     or so, and hope they will arrive promptly.

LOBDELL.'

The objection was made that it was a letterpress copy, and not the original. Without deciding whether a letterpress copy can always be introduced in place of the original, as is contended by the counsel for the defendant in error, it is sufficient to say that Lobdell, the witness, had previously testified, without objection, that he had acknowledged the receipt of the letter of guaranty and order by a letter to Gillman, in which he told him that the goods would be shipped in a few days. The introduction of this copy was therefore wholly immaterial; and, even without such proof, the acknowledgment of the letter of Gillman was unnecessary to fix the liability of the defendants, and could have worked no prejudice.

These are all the assignments of error worthy of attention, and the judgment of the supreme court is therefore affirmed.