Miller, J.
The judge upon the trial held that the plaintiff’s reply to the defendant’s answer admitted that they did
agree that, in case the defendant would sue in his own name the Chicago Bcpublican Company to enforce the payment of the note, that the plaintiff would not proceed against him until judgment was recovered in that action j that this should be taken as the limit of liability ; and that there would be no other forbearance created in the proposition contained in the letter of the plaintiff’s cashier to the defendant, upon a fair construction of its language. The case was disposed of upon the construction to be placed upon this letter regarding it as an agreement between the parties. Several requests were made to charge the jury, which were refused and exceptions severally taken to each refusal, and the judge directed a verdict in favor of the plaintiff, to which ruling an exception was also taken.
The principal question which presents itself is whether the judge erred in the withdrawal of the case from the jury, and in thus directing a verdict. The solution of this question involves a consideration of the evidence presented upon the trial. While the facts were undisputed, there were circumstances connected with the transaction which properly should be taken into consideration in determining the inferences to be drawn from the acts of the parties themselves.
The defendant was the editor of the Chicago Bcpublican newspaper, which was owned by a corporation in wdiich he had received stock as an inducement to become such editor. According to the defendant’s testimony, the paper was out of money, and the publisher, who was the general manager and wdio had charge of its finances, went to Springfield to see General Williams, who was plaintiff’s president, and Mr. Bunn, who carried on a private bank of his own, and who were stockholders and had established the paper, returned and told the defendant that they had concluded to levy an assessment upon the stock, and wanted him to pay his share ; and that they agreed to furnish the money, with a pledge of the stock. It was also represented to and understood by the defendant that Williams had paid his subscription to the stock in full; that there was to be an additional assessment
upon all the stock ; and that both Williams and Bmin, had agreed to and were to pay their assessment. The note in .suit was made payable at the plaintiff’s bank, because Williams, as defendant testifies, was the bank. According to his (Williams’) own testimony, he owned a majority of the stock. It was under these circumstances and by reason of these representations, that' the note in question and another were delivered to the publisher to be sent to Springfield to raise the money.
The proof shows that Williams had neither paid his assessment nor had he fully paid for his”stock; and it is thus manifest, —if the defendant’s version of the transaction is correct—that the notes were obtained from him under representations which were not true. It is. also proved and not contradicted, that afterwards, at the time when the defendant’s separation was agreed upon at a meeting of all the stockholders,—which, we may assume, included the plaintiff’s president'— that the defendant proposed to them that they should pay these notes, and, at the same time, pay him a large sum of money, and that the defendant should give them the stock, as a condition of his giving up the contract. They thereupon agreed to assume the payment of the two notes, and, in accordance with this arrangement, the stock was surrendered and the defendant was relieved from any obligation to pay such notes. He had a right to suppose—and there is evidence which sustains the theory—that he was then discharged from all obligation to pay the same, unless the note in question had been transferred to the plaintiff absolutely, without notice as to the facts, and it held the same as a
bona fide
holder, without any participation in the arrangement for its payment. In this respect there is no direct evidence. It does, however, appear that, upon the defendant’s being ■advised that a claim was made against him for the same, a correspondence ensued, all or a portion of which ivas introduced in evidence upon the trial by the plaintiff, except the letter of the plaintiff’s cashier, dated July 9, 1869. The first letter of the defendant, dated March 17, 1868, to the
plaintiff’s cashier, gives a history of the notes substantially as, already stated, and says the Republican Company have-settled one of them, and that they are bound to settle the one hold by the plaintiff. The answer to this is not given, and on the twenty-fourth of March following the defendant, again writes, and says he does not want to be sued for nothing, and if he is, he has “ no recourse but to sue the Republican Company and its individual stockholders,” and refers, to Mr. Williams, the plaintiff’s president, as one of them, and offers to write to him or others, as advised. On the. eighth of October following the defendant again writes, stating that he has written to Bunn, Williams and other prominent stockholders, that he should have to sue them if the plaintiff sued him, as they were individually liable. On the- ninth of October the defendant also writes to Gen. Williams that he has been notified by the plaintiff of the. intention to sue him on the note, and states that if he is sued he will be compelled to bring a suit in the United States Circuit Court against the company and its stockholders.
There can be no mistake as to the construction to be-placed upon these letters, and as to the fact that at this, time the plaintiff was fully advised of the circumstances, under which the note in question was given, and of the fact that an arrangement had been made by which they were to-be paid by the Republican Cmnpany, nor as to the proposal or suggestion of the defendant to sue the company and the-stockholders, and to pursue this remedy.
In the absence of any proof that any further correspondence ensued until the 8th of July, 1869, it is at least, questionable whether the letter.of the plaintiff’s cashier of that date should be regarded as a response to the last letter of the defendant. This letter states the inability of the-plaintiff to get Mr. Bunn or the Republican Company to-settle, and proposes to save expense, and that if the defendant will sue the Republican Company for the performance of the contract in paying the note, they will divide the-expense of the suit with him, or rather that they will pay
ono-lialf of the costs of the suit. It also states that if the proposition suits, it will avoid the necessity of commencing a suit upon the note which will be more satisfactory all around. If the letter of the plaintiff’s cashier stood alone, a question would arise whether the contract was not satisfied by the bringing of the suit and obtaining a judgment against the Republican Company ; but if all the letters are to be taken into consideration, it is certainly not clear that a suit against the stockholders also was not a part of the arrangement. The defendant upon being informed of the claim, declined to pay and suggested a suit against the company and the stockholders.
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Miller, J.
The judge upon the trial held that the plaintiff’s reply to the defendant’s answer admitted that they did
agree that, in case the defendant would sue in his own name the Chicago Bcpublican Company to enforce the payment of the note, that the plaintiff would not proceed against him until judgment was recovered in that action j that this should be taken as the limit of liability ; and that there would be no other forbearance created in the proposition contained in the letter of the plaintiff’s cashier to the defendant, upon a fair construction of its language. The case was disposed of upon the construction to be placed upon this letter regarding it as an agreement between the parties. Several requests were made to charge the jury, which were refused and exceptions severally taken to each refusal, and the judge directed a verdict in favor of the plaintiff, to which ruling an exception was also taken.
The principal question which presents itself is whether the judge erred in the withdrawal of the case from the jury, and in thus directing a verdict. The solution of this question involves a consideration of the evidence presented upon the trial. While the facts were undisputed, there were circumstances connected with the transaction which properly should be taken into consideration in determining the inferences to be drawn from the acts of the parties themselves.
The defendant was the editor of the Chicago Bcpublican newspaper, which was owned by a corporation in wdiich he had received stock as an inducement to become such editor. According to the defendant’s testimony, the paper was out of money, and the publisher, who was the general manager and wdio had charge of its finances, went to Springfield to see General Williams, who was plaintiff’s president, and Mr. Bunn, who carried on a private bank of his own, and who were stockholders and had established the paper, returned and told the defendant that they had concluded to levy an assessment upon the stock, and wanted him to pay his share ; and that they agreed to furnish the money, with a pledge of the stock. It was also represented to and understood by the defendant that Williams had paid his subscription to the stock in full; that there was to be an additional assessment
upon all the stock ; and that both Williams and Bmin, had agreed to and were to pay their assessment. The note in .suit was made payable at the plaintiff’s bank, because Williams, as defendant testifies, was the bank. According to his (Williams’) own testimony, he owned a majority of the stock. It was under these circumstances and by reason of these representations, that' the note in question and another were delivered to the publisher to be sent to Springfield to raise the money.
The proof shows that Williams had neither paid his assessment nor had he fully paid for his”stock; and it is thus manifest, —if the defendant’s version of the transaction is correct—that the notes were obtained from him under representations which were not true. It is. also proved and not contradicted, that afterwards, at the time when the defendant’s separation was agreed upon at a meeting of all the stockholders,—which, we may assume, included the plaintiff’s president'— that the defendant proposed to them that they should pay these notes, and, at the same time, pay him a large sum of money, and that the defendant should give them the stock, as a condition of his giving up the contract. They thereupon agreed to assume the payment of the two notes, and, in accordance with this arrangement, the stock was surrendered and the defendant was relieved from any obligation to pay such notes. He had a right to suppose—and there is evidence which sustains the theory—that he was then discharged from all obligation to pay the same, unless the note in question had been transferred to the plaintiff absolutely, without notice as to the facts, and it held the same as a
bona fide
holder, without any participation in the arrangement for its payment. In this respect there is no direct evidence. It does, however, appear that, upon the defendant’s being ■advised that a claim was made against him for the same, a correspondence ensued, all or a portion of which ivas introduced in evidence upon the trial by the plaintiff, except the letter of the plaintiff’s cashier, dated July 9, 1869. The first letter of the defendant, dated March 17, 1868, to the
plaintiff’s cashier, gives a history of the notes substantially as, already stated, and says the Republican Company have-settled one of them, and that they are bound to settle the one hold by the plaintiff. The answer to this is not given, and on the twenty-fourth of March following the defendant, again writes, and says he does not want to be sued for nothing, and if he is, he has “ no recourse but to sue the Republican Company and its individual stockholders,” and refers, to Mr. Williams, the plaintiff’s president, as one of them, and offers to write to him or others, as advised. On the. eighth of October following the defendant again writes, stating that he has written to Bunn, Williams and other prominent stockholders, that he should have to sue them if the plaintiff sued him, as they were individually liable. On the- ninth of October the defendant also writes to Gen. Williams that he has been notified by the plaintiff of the. intention to sue him on the note, and states that if he is sued he will be compelled to bring a suit in the United States Circuit Court against the company and its stockholders.
There can be no mistake as to the construction to be-placed upon these letters, and as to the fact that at this, time the plaintiff was fully advised of the circumstances, under which the note in question was given, and of the fact that an arrangement had been made by which they were to-be paid by the Republican Cmnpany, nor as to the proposal or suggestion of the defendant to sue the company and the-stockholders, and to pursue this remedy.
In the absence of any proof that any further correspondence ensued until the 8th of July, 1869, it is at least, questionable whether the letter.of the plaintiff’s cashier of that date should be regarded as a response to the last letter of the defendant. This letter states the inability of the-plaintiff to get Mr. Bunn or the Republican Company to-settle, and proposes to save expense, and that if the defendant will sue the Republican Company for the performance of the contract in paying the note, they will divide the-expense of the suit with him, or rather that they will pay
ono-lialf of the costs of the suit. It also states that if the proposition suits, it will avoid the necessity of commencing a suit upon the note which will be more satisfactory all around. If the letter of the plaintiff’s cashier stood alone, a question would arise whether the contract was not satisfied by the bringing of the suit and obtaining a judgment against the Republican Company ; but if all the letters are to be taken into consideration, it is certainly not clear that a suit against the stockholders also was not a part of the arrangement. The defendant upon being informed of the claim, declined to pay and suggested a suit against the company and the stockholders. The cashier’s letter, if it may be regarded as an answer, accepts the proposition to sue the company at least, without using language which expressly limits the suit to the company alone, or intimating in any manner that he refuses to accede to suing the stockholders. Such an answer might well be regarded, under some circumstances, as an acceptance of the entire suggestion to sue both the company and the stockholders. The object of the suit would be to collect the demand ; and as defendant had named the stockholders as persons to be sued, it is hardly to bo assumed that such a purpose would be effectually accomplished by a suit against the company only. If the letters are to be taken together, there was a contract to delay for some time; and it is not manifest that it was contemplated to stop with the company, when it was by no means certain that a judgment against it would be of any avail. The letter of the cashier, in view of the inferences to be drawn from all the facts, might, perhaps, be construed by a jury as an acceptance of the defendant’s suggestion or proposal. Although the letter was written some time after the defendant’s letters, the lapse of time after all left a question of fact for the jury to determine whether it was in response to the defendant’s letters ; and it was for the jury to decide, under the circumstances, whether there was not an entire acceptance of the full proposition of the defendant to sue both the company and the stockholders.
, While it is the province of the court to construe contracts,
jet where
the meaning is obscure and depends upon facts
•aliunde
in connection with the written language, very much must be left to the jury. (Phil, on Ev. [Cow.
&
H’s. notes], 1420;
Gardner
v. Clark, 17 Barb., 551;
Etting
v.
Bank of U. S.,
11 Wheat., 59;
Jennings
v. Sherwood, 8 Conn., 122.) Within this rule the case should have been submitted to the jury by the judge ; and it was error to direct a verdict for the plaintiff.
The plaintiff has no ground of complaint of the consequences resulting from the agreement if made, so long as it was entered into for a valid, consideration and in reference to a claim which the defendant had reason to believe was-actually paid. If the plaintiff did enter into a contract to allow the defendant to collect the debt of the parties who justly should pay it, no lawful reason exists why it is not obligatory.
It is claimed that the defendant was bound to ask the court to submit the question to the jury. We think that this was not necessary. The cases which hold that this is required are those where the party had, by motion for a non-suit, or by resting their defense upon certain propositions of law, or by requesting the court to direct a verdict, impliedly waived their right to go to the jury. (See
Winchell
v.
Hicks,
18 N. Y., 558;
O'Neill
v.
James,
43 id., 84.) This was not such a case, as no motion was made by the defendant’s counsel which assented to a decision of the case by the judge, and several requests were made to charge the jury, which were refused. It was not treated at all by the defendant as 'involving a question of law merely, and comes directly within the rule laid down in
The Trustees, etc., of East Hampton
v.
Kirk
(68 N. Y., 459), that where the court directs a verdict, an exception to the ruling of the judge, in the absence of anything from which it may be implied that the right to go to the jury had been waived, is sufficient to present the objection upon appeal that there were questions of fact for the jury, and that it is not necessary to request that every fact
be so submitted. This case is decisive. Ho other points or suggestions are made in support of the judgment which demand comment; and the judgment and order must be reversed and a now trial granted, with costs to abide the event.
All concur, except Andrews and Earl, JJ., dissenting. Judgment reversed.