Charles Brown Grocery Co. v. Wasson

• Decision Date: 21 May 1902
• Citation: 113 Ky. 414,68 S.W. 404
• Parties: CHARLES BROWN GROCERY CO. v. WASSON et al. [1]
• Court: Kentucky Court of Appeals

68 S.W. 404

113 Ky. 414

CHARLES BROWN GROCERY CO. v. WASSON et al. ^[1]

Court of Appeals of Kentucky.

May 21, 1902

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by the Charles Brown Grocery Company against C. E. Wasson and others on a bond. Judgment for plaintiff against C. E. Wasson and dismissing petition as to other defendants, and plaintiff appeals. Affirmed.

Chas H. Fisk, for appellant.

H. D Gregory, for appellees.

HOBSON J.

Appellant the Charles Brown Grocery Company, employed C. E. Wasson as salesman. By the contract between them he was to receive for his services compensation at the rate of 40 per cent. of the gross profits on the sales made by him. For a part of the time the company guarantied to him that this should not be less than $85 a month and expenses, but later the guaranty was withdrawn. The company furnished him money from time to time, as he called for it, to cover his expenses and salary and at the end of his term of service he had fallen in debt to it in the sum of $572.77. He executed to it a bond, with appellees as sureties, for the faithful performance of his duties, and this suit was brought by the company on the bond against him and his sureties to recover the balance owing by him. On final hearing the court gave judgment against him for the amount claimed, but dismissed the action as to his sureties, and from this judgment the plaintiff appeals. The only question in the case that need be determined is whether the bond which the sureties signed covers the liability sued for. By it the obligors acknowledged themselves bound to the company in the sum of $2,000, and then concludes with these words: "The condition of the above obligation is such that whereas, the said Charles Brown Grocery Company aforesaid have employed the said Charles E. Wasson to sell goods and collect for same: Now, if the said Charles E. Wasson shall well and faithfully discharge his duties as salesman and collector, and shall also account for all moneys and properties and other things which may come into his possession or under his control in such capacity, then the above obligation is to be void; otherwise to remain in full force and virtue." It is not averred or shown that Wasson failed to discharge his duties as salesman or collector, or that he did not account for moneys, property, or other things which came into his possession or under his control in that capacity, unless the money advanced to him by the company as above explained comes within the words quoted. He accounted for all the goods that were delivered to him to sell, and also for all the money that he collected. The money that was not accounted for was advanced to him by the company, not alone to cover his traveling expenses, but was paid to him from month to month on the expectation that his compensation under the contract would equal the amount he received. This expectation was disappointed by the fact that a mistake was made in his account, and there were some bad debts or losses which cut down the profits. He did not receive the money as salesman or collector to hold it for the company, but it was evidently paid to him with the intent that he was to use as his own what was over and above his expenses. He furnished the company monthly a statement of his expenses, and it therefore knew every month just how much he was appropriating. He owed the company the amount he so appropriated over and above the salary that was coming to him under his contract, but the question is, are his sureties liable for the amount thus overpaid him by the company on account of his salary? The general rule is that a surety is not bound beyond the terms of his contract strictly construed, and that it cannot be enlarged by implication to cover anything not in the contemplation of the parties at the time of its execution. The condition of the bond recites that the company has employed Wasson to sell goods and collect for them, and obligates the signors that he shall faithfully perform his duties as salesman and collector, and account for everything coming into his possession or under his control in that capacity. It contains...