#### Spencer, Appellant, vs. Holman, imp., Respondent.

*January 30*—

February *18, 1902.*

*Guaranty: Construction of contracts: Sealed instruments: Limitar tion of actions.*

*1.*In tlie construction of contracts tlie definite and precise must prevail over tlie indefinite, the particular over the general, and the-express over what might he otherwise implied.

2. Plaintiff entered into a written contract with B., by which B. agreed to log, saw, and pile all the. pine timber on certain lands-during the following winter. Defendant signed the following guaranty indorsed on said contract: “For value received, I hereby guarantee the fulfillment of within contract on the part of [B.]. In case of the failure to log, saw, and pile the timber that is burnt, within the time stated, I agree to make good to-[plaintiff] all damages arising from such failure. *Held,*that the guaranty simply covered the burnt timber.

3. In such case, the contract on which such guaranty was indorsed was under seal. *Held,*that liability under the contract of guaranty, which was not under seal, was barred in six years under subd. 3, sec. 4222, Stats. 1898, and not in twenty years under sec. 4220.

Appeal from a judgment of tbe circuit court for Wau-paca county: Chas. M. Webb, Circuit Judga

*Ajjhyned.*

This action was commenced February 26, 1900, to recover damages for the breach of a contract entered into November 26, 1892, by and between the plaintiff and the defendants-Baggs and L. Holman, under their hands and seals, wherein Baggs and L. ITolman agreed, in effect, to log, saw, and pile-all the standing or down pine timber located on the premises *341■described (supposed to' be 500,000 feet, more or less), in the manner therein prescribed, and have same hauled to Rica Lake and piled as therein stated (all to be done in a mer■chantable and workmanlike manner), during the winter of 1892 — -93, but, in case the weather would not permit the hauling during the time stated, then they were to- haul the same as stated, at the place where sawed; and in considera-' tion thereof the plaintiff was to pay $5.25 per thousand feet for cutting and sawing, and $1 per thousand feet for hauling .and piling the same at Rice Lake, and, in case any lumber was left that must be piled at the mill, then there was to be no charge for piling the same; and the plaintiff therein agreed to advance to Baggs and Holman, from time to time, a reasonable sum to apply on the contract, — the balance when the contract should be completed. Some weeks after-' wards, and in January, 1893, the defendant *Clark JE. Ilol-man*signed a written guaranty, indorsed upon the back of «aid contract, in the words and figures following:

“Waupaca, Wis., Jan. 1893.

“For value received, I hereby guarantee the fulfillment of within contract on the part of Ira Baggs and L. Holman. In case of the failure to log, saw, and pile the timber that is burnt, within the time stated, I agree to make good to *•O. A. Spenser*all damages arising from such failure.

“Witness: M. T. Allen.

“[Signed] *C. H. Holman.”*

May 19, 1893, Baggs and L. Holman gave to the plaintiff a chattel mortgage on certain personal property to secure all advances which had been made and to be made, and for the faithful performance of the conditions of the contract ■of November 26, 1892. December 2, 1893, Baggs and L. Holman entered into a new contract in writing with the plaintiff, wherein and whereby the time for the performance of the contract of November 26, 1892, was extended over the winter’ of 1893-94; and, if the work was not completed ■during that winter, then it might thereafter be performed *342whenever it should be mutually convenient and acceptable-to the parties to that contract, but with the agreement and understanding between them that such extension should “in no way waive the rights of either party to said contract arising out of any breach of the conditions thereof”; and it was therein further agreed that the $1,441 which the plaintiff had previously advanced over and above the amount actually earned by Baggs and L. Holman under the contract, should draw interest from September 1,. 1893, at the rate of seven per cent, per annum, until paid, and that the plaintiff waste receive on such indebtedness, at the going market price, all lumber which Bangs and L. Holman had or should cut during that winter on their own land, but with the privilege-on their part to sell the same to others, if they could dp so- to better advantage, provided the proceeds thereof should be paid over to the plaintiff, to apply on such indebtedness. The defendants L. Holman and *Clarke E. Holman*each .answered separately. At the close of the trial of the issues thus formed, the plaintiff made application in open court to have the attachment proceedings dismissed, with costs, in favor of *Clark E. Holman*in such attachment proceedings, to1 be taxed; and the court having granted a nonsuit in favor of the defendant *Clark E.*Holman, and the cause having then been submitted to the jury as to Baggs and L. Holman, and the jury having returned a verdict in favor of the plaintiff and against Baggs and L. Holman, and assessed his damages-at $1,000, it was thereupon ordered and adjudged that such attachment proceedings be, and the same were thereby, dismissed, and that *Clark E. Holman*recover of the plaintiff his costs in such attachment proceedings, taxed at $21.18; and- it was further ordered and adjudged that the action be, and the same was thereby, dismissed as to *Clark E.*Holman> and that he have and recover of the plaintiff his costs in the action, taxed at $44.41; and, on motion of the plaintiff, it was ordered and adjudged that the plaintiff recover of Baggs *343and L. Holman $1,000 damages and bis costs, taxed at $114.54. From that part of tbe judgment dismissing tbe action as against *Ciarle E.*Holman, and awarding costs in bis favor for $44.41, tbe plaintiff brings tbis appeal.

*Gerhard M.*Dahl, for tbe appellant.

*John C.*Hart, for tbe respondent.

Cassoday, C. -J.

Four grounds are urged in support of tbe nonsuit in favor of *Claris E. Holman.*Tbe view we bave taken of tbe case makes it unnecessary to consider all of them. For tbe purposes of tbis appeal, we shall assume that tbe guaranty upon which tbe plaintiff seeks to recover against him in tbis action, although signed several weeks after tbe execution of tbe contract, was neverthelesss based upon a sufficient consideration. That guaranty is set forth in full in tbe foregoing statement of facts. It consists of two clauses. Tbe first simply guaranteed tbe fulfillment of the contract of November 26, 1892, on tbe part of Baggs and L. Holman. By tbe second be agreed to make good to tbe plaintiff all damages arising from any failure of Baggs and L. Holman to log, saw, and pile tbe timber that was burnt, within tbe time stated in tbe contract, which was “during tbe winter of 1892 — 93.” If tbe general clause covered tbe burnt timber, then tbe specific clause was without significance. It is well settled “that general words in any instrument” are “weakened by enumerations.” *Sharpless v. Mayor, etc.*21 Pa. St. 161; *Webster v.*Morris, 66 Wis. 395; *McAlpine v.*Foley, 34 Minn. 252. As stated by tbe late Chief Justice GimnnnAN, “tbe definite and precise must prevail over the indefinite, tbe particular over tbe general, and the express over what might otherwise be implied.” *Quimby v.*Shearer, 56 Minn. 538, 539. Tbe guaranty simply covers tbe burnt timber. It is conceded that tbe burnt timber was logged, sawed, and piled during tbe time speci*344fied, or at least within one year from tbe time tbe contract was made.

' Assuming that tbe general clause of tbe guaranty covers some other liability as to tbe burnt timber, not mentioned in tbe second clause, still tbe question recurs whether tbe plaintiff’s claim for damages therefor is not barred, as against *Clark E.*Holman, by the six-year statutes of limitation set up in bis answer. Secs. 4219, 4222, Stats. 1898. As indicated, tbe contract of November 26, 1892, was to be performed during tbe winter of 1892-93. Tbe new contract extended tbe time of performance “over the winter of 1893-94.” But it was therein expressly “understood and agreed between the parties to” that contract, that such extension should “in no way waive tbe rights of either party to said contract arising out of any breach of the conditions thereof.” Tbe contract of November 26, 1892, was breached by tbe failure of Baggs and L. Holman to perform during tbe winter following. If *Clark E. Holman*was liable on bis guaranty for such breach of tbe conditions of that contract, then tbe plaintiff’s cause of action therefor accrued upon tbe expiration of tbe winter of 1892-93; and by tbe agreement of December 2, 1893, it was expressly agreed that such right of action was not waived by tbe malting of such new contract. This action was not commenced until February 26, 1900, — more than six years after mating tbe new contract, and nearly seven years after tbe breach of tbe contract of November 26, 1892, for which it is sought to bold *Clark E. Holman*liable on bis guaranty. In tbe meantime tbe plaintiff bad taken a chattel mortgage to secure the repayment of such advances and tbe faithful performance of such contract, and tbe possession of tbe property covered by tbe mortgage. It is contended by counsel for tbe plaintiff that because tbe contract of November 26, 1892, was under seal, therefore any liability of *Clark E. Holman*upon bis written guaranty, not under seal, could only be barred by tbe twenty-*345year statute of limitation. Sec. 4220. Of course, two or more persons may adopt a single seal, where they all sign the same instrument. *Yale v. Flanders,*4 Wis. 96; *Rollins v. Humphrey,*98 Wis. 66. The guaranty in question, though indorsed upon the back of the contract of November 26, 1892, was nevertheless a separate and independent contract. *Tidioute S. Bank v.*Libbey, 101 Wis. 196, and cases there •cited. There is no more ground for claiming that such guarantor adopted the seal of any of the makers of the original ■contract than there would be for claiming that a man who ■signs a note secured by mortgage thereby adopts his own ■seal on the mortgage. And yet there are numerous eases in this court where it has been held that personal liability on a note six years after maturity is barred, notwithstanding ■an action may be maintained to foreclose the mortgage given to secure the same. *Wiswell v. Baxter,*20 Wis. 680; *Phelan v. Fitzpatrick,*84 Wis. 249, and cases there cited; *Duecker v. Goeres,*104 Wis. 37, and cases there cited. We must hold .that the cause of action against *Clark E. Holman*is barred by the statute of limitations. Subd. 3, sec. 4222, Stats. 1898. This makes it unnecessary to consider other questions discussed by counsel. .

*By the Oourt.*— That portion of the judgment of the circuit court from which the appeal is taken is affirmed.