Gerke v. Brewing Co.

PRINCIPAL AND SURETIES.

[Hamilton (1st) Circuit Court, July, 1900.]

Giffen, Smith and Swing, JJ.

HENRY GERKE ET AL. V. GEORGE WIEDEMANN BREWING CO. LIABILITY OF SURETIES LIMITED TO EXACT LETTERS OF BOND.

Sureties on a bond securing payment for goods sold on credit are released, where contrary to the terms of the bond payment for the first car load was not required when the third car was ordered, and settlement was not insisted on as provided for on a specified date and on the first day of each succeeding month thereafter, but time for payment was extended by permitting the amount due to increase from month to month.

ERROR to common pleas court.

Milton Sater, for plaintiff's in error.

Louis J. Dolle, for defendant in error.

SWING, J.

The brewing company entered into a contract with Henry Gerke in which it was agreed that said brewing company should furnish to said Gerke beer in car load lots in wood and beer in bottles to be sold by said Gerke at Marietta, Ohio. Said contract was to begin February 24, 1896, and to continue for one year. Either party was given the right to terminate the contract on thirty days' notice, and any material violation of the agreement by either party was to render the agreement null and void. It was provided in the contract that "said company will furnish said Gerke the first two car loads of beer on credit, for which said Gerke shall execute a bond of $1,000, and when he orders the third car of beer he shall pay for the first car of beer he received; all settlements thereafter are to be made on the first day of each month commencing May 1, 1896, at which time said Gerke is to make payments to said company for the beer that may be ordered by or delivered to him."

On said February 24, 1896, said Gerke, together with his wife, Maria Gerke, and B. Meyer, defendants herein, executed and delivered to the brewing company their bond for $1,000. The condition of this bond was to this effect:

Hamilton County.

"That whereas the above named Henry Gerke has this day entered into and made a contract in writing with the said George Wiedemann Brewing Company for the purchase of beer in wood and bottles by the car load lots from the said George Wiedemann Brewing Company for a period of four years or until said parties agree to discontinue as set forth in said agreement. Said agreement is in writing and bears even date herewith and which is here referred to and made a part hereof. Now, therefore, if the said Henry Gerke shall well and truly perform said contract and shall fully comply with and carry out each and every provision thereof and shall pay for all of said beer purchased then this bond shall be null and void."

Suit was brought by the brewing company against said Henry Gerke, Maria Gerke and B. Meyer. For a first cause of action the plaintiff sets out a claim against Henry Gerke on the contract referred to, and for a second cause of action a claim against all of the defendants on the bond referred to. Copies of the contract and bond are annexed to the petition. Henry Gerke filed no answer and judgment by default was awarded against him on April 2, 1897, for the sum of $1,599.49, the amount claimed to be due. Maria Gerke and B. Meyer filed an answer in which they admitted the execution of the contract and bond as set out in the petition, but alleged that they were released from the obligations of the bond by reason of the fact that the said Henry Gerke was not required to pay for the first car load of beer for which he was given credit, nor did he pay for the first car load of beer when he ordered the third car; that no settlements were made on the first of every month as required by the contract and bond; that said company gave said Henry Gerke credit for more than two cars of beer at one time, and that a settlement was not made on May 1, and each and every month thereafter during the continuance of said contract; and that he did not pay on the first of every month for the beer delivered to him. This answer also contained a general denial as to all matters not admitted.

The plaintiff filed a demurrer to all that portion of defendants' answer except that which set up a denial, and this demurrer the court sustained. This demurrer was sustained

Gerke v. Brewing Co.

February 20, 1897. On December 29, 1898, the case was heard on the pleadings and the evidence by the court and judgment rendered against said Maria Gerke and B. Meyer for $838.

Error is prosecuted in this court to this judgment.

The evidence shows that the company shipped to Henry Gerke on February 24, 1896, beer in wood to value of $187.50 and beer in glass $115; on March 13, $125 in wood and $116.50 in bottles or glass; April 8 and 25, $131.25 each time in wood and $166.50 and $169.90 in glass. Credit was given Gerke for cash of $400 and $31.25 allowance up to April 24, 1896; balance due the company on May 1 was $867.65. This amount was not paid to the brewing company on May 1 as provided in the contract. Neither was any settlement made between the parties. The brewing company continued to furnish Gerke beer in wood and in bottles until August 28 of said year, at which time the amount due the company from said Gerke was $1,561.95. No settlements were made at any time between the parties, but beer was shipped to said Gerke by said company during all this time and payments in cash were made during each month by said Gerke on said account; that at the end of each month the amount due was greater than of the previous .month.

By reason of these admitted facts were the sureties on the bond released? We are of the opinion that they were. The general rule of the liability of sureties on bonds is thus stated by Reed, J., in the case of State v. Medary, 17 Ohio 565:

"The bond speaks for itself, and the law is that it shall so speak, and that the liability of the sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable nothing can. There is no construction, no equity against sureties. If a bond cannot have effect according to its exact words the law does not authorize the court to give it effect in some other way in order that it may prevail."

This rule has frequently been followed by our Supreme Court. In not requiring Gerke to pay for the first car of beer when the third was ordered, and in not requiring settlements on May 1, and the first of each succeeding month, and in extend

43 O. C. C. Vol. 32.

Hamilton County.

ing time of payments as was done by allowing the account to accumulate each month, was a material violation of the terms of the contract and bond, and necessarily worked an injury to the sureties on the bond.

Judgment reversed and cause remanded for further proceedings.

Giffen and Smith, JJ., concur.

ATTORNEY AND CLIENT-DISBARMENT.

[Hamilton (1st) Circuit Court, March 14, 1910.]

Giffen, Smith and Swing, JJ.

*CHARLES S. SPARKS, IN RE DISBARMENT.

JUDGMENT OF DISBARMENT MAY BE SUSPENDED AND ATTORNEY RESTORED TO PRACTICE UPON SHOWING OF REPENTANCE AND REFORMATION.

Reformation of accused and protection of the public, not punishment, are the ends sought to be attained by disbarment of an attorney; hence, accused having acknowledged the wrong committed and since his suspension having conducted himself in a manner above criticism and inspiring in the minds of fellow attorneys the belief that he has been sufficiently punished, further execution of the judgment will be suspended and the attorney be restored to practice.

APPLICATION for modification of judgment of disbarment.. SMITH, J.

At a former term of this court, to wit, February 26, 1909, Charles S. Sparks was found guilty of unprofessional conduct as an attorney at law and suspended from practice for the period of three years.

The case is again before the court upon the application of said attorney for a modification of said judgment in that he be restored to the practice of law.

In his application he acknowledges the wrong that he committed, and files with the court a petition signed by numerous citizens and attorneys at this bar, setting out that since the judgment of suspension was ordered said Sparks has conducted him

*See Sparks, In re, 54 Bull. 26.

Sparks, In re.

self uprightly and that in their opinion he has been sufficiently punished for the offense of which he was adjudged guilty.

The evidence upon the hearing of the application disclosed that the committee heretofore appointed to prosecute the charges against him had been notified of the filing of the application and the time of its hearing.

This appears, therefore, to be a matter left to a great extent to the sound discretion of the court. In proceedings of this kind it is evident that punishment is not the sole end to be attained, but rather protection, the main object of the punishment inflicted being the reformation of the party punished.

Since the suspension of the applicant the court is of the opinion that he has conducted himself in such a way as indicates. that he fully realizes the gravity of his offense, and we believe that if restored to practice he will be very careful not to repeat the same.

"Admission as an attorney is not attained without years of labor and study. The office which the party thus acquires is one of value and often becomes a source of great honor and emolument to its possessor. To most persons who enter the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destruction to his family." Bradley v. Fisher, 80 U. S. (13 Wall.) 355 [20 L. Ed. 646]; Weeks, Attorneys 158, 174.

Under the evidence adduced at the hearing of the application, the end being the reclamation of the offender, we are of the opinion that the further execution of the judgment heretofore rendered should be suspended, and the applicant restored to the practice of his profession.

Giffen and Swing, JJ., concur.