Campbell v. Warden

45 Wis. 338

• Court: Wisconsin Supreme Court
• Decided: August 15, 1878
• Status: Published

Opinion

RxaN, O. J.

The only substantial ground urged for the appellants to reverse the judgment in this case, is that the respondent undertook to charge the principal of the appellants, in some few instances, more than the contract rate; and that this worked a change in the contract which discharged the appellants from their liability as sureties.

The contract fixed the rate, and the quantity was matter of fact. Under the contract, no formal account need have been kept. And it was immaterial to the contract between the principals, and immaterial to the sureties, whether the respondent’s account was justly and accurately kept or not. If he made overcharges, he certainly did wrong. But he only undertook to increase his demand, not to change the ground of his demand. And his overcharges did not affect the liability of the principal of the appellants, or vary the contract. They were matters dehors the contract, and without influence in any way upon it.

The referee did not find that the respondent had broken his. contract by the overcharges. If he had so found, this court would have overruled the finding.

By the Gourt. — The judgment of the court below is affirmed.