"Second
Paragraph. The plaintiff, by leave of the
court, further complains of the defendants, and for second
paragraph of complaint alleges: That said plaintiff, then and
there being engaged in the wholesale grocery business, at the
city of Indianapolis, Indiana, on the 4th day of April, 1892,
it was mutually agreed by and between the plaintiff and the
said defendant, Ed. C. Scott, that he, the said Ed. C. Scott,
should be employed by him, the said plaintiff, as a
commercial traveler and salesman in his said business, and
that said defendant, Ed. C. Scott, should, as such employe,
solicit orders, make sales of, and collections for goods,
wares and merchandise, handled and sold by said plaintiff in
his said business as such wholesale grocer, and that said Ed.
C. Scott should faithfully perform the duties of his said
employment and faithfully and truthfully report all his
transactions as such employe, and faithfully account for and
pay over to the plaintiff all moneys and notes received by
him for plaintiff's use, as such employe, in
consideration of payment of forty per cent. of the gross
profits of sales made by him as such employe, less his
expense and forty per cent. of his losses, which
consideration and compensation the said plaintiff then and
there agreed to pay the said Ed. C. Scott for his services as
such employe.
"And
in consideration of said contract, and as a part thereof, the
said defendants, Ed. C. Scott, Samuel C. Scott, James R.
Bryant and David W. Hughes, on said 4th day of April, 1892,
executed to the said plaintiff their certain bond and writing
obligatory, a copy of which is filed herewith and made a part
hereof, marked Exhibit 'A,' in the sum of twenty-five
hundred dollars ($ 2,500.00), conditoned that the said Ed. C.
Scott would faithfully perform the duties of his said
employment and faithfully and truthfully report all his
transactions as such employe, and faithfully account for and pay over to the plaintiff all moneys and
notes received by him for the plaintiff's use; that the
plaintiff then and there and thereupon, in consideration of
the premises, that is to say, of the said contract and bond,
employed the said defendant, Ed. C. Scott, as such commercial
traveler and salesman, as aforesaid, and said defendant, Ed.
C. Scott, then and there entered upon his duties as such
employe and so continued in said employment until the 19th
day of December, 1892, as the said defendants then and there
and at all times well knew; that between the 5th day of
April, 1892, and the 19th day of December, 1892, the said
defendant, Ed. C. Scott, as such commercial traveler and
salesman and employe, received money to the value and
aggregate sum of $ 3,500.00, to the use of the plaintiff, for
which he has failed and refused to account to the plaintiff,
and has converted the same to his own use, to the
plaintiff's damage in the sum of $ 3,500.00, which is due
and unpaid. Of which default said defendants had due notice,
and payment of said bond was demanded of them, but said
payment was refused by them, and said bond is due and wholly
unpaid. Wherefore plaintiff demands judgment for $ 2,500.00,
the penalty of said bond.
"Third
Paragraph.--The plaintiff further
complains of the defendant, and for third paragraph of
complaint alleges: That the said plaintiff then and there
being engaged in the wholesale grocery business at
Indianapolis, Indiana, the said defendant, Ed. C. Scott, on
the 21st day of March, 1892, applied to the plaintiff for
employment as a commercial traveler and traveling salesman in
his said business to solicit orders, make sales of, and
collection for goods, wares and merchandise handled and sold
by said plaintiff in his said business, and whereupon the
said plaintiff so employed the said
defendant, Ed. C. Scott, upon the condition, and not
otherwise, that he, the said Ed. C. Scott, would give and
deliver to the plaintiff a bond in the sum of twenty-five
hundred dollars ($ 2,500.00), with approved sureties for the
faithful discharge of his duties as such employe, and
conditioned that the said Ed. C. Scott would faithfully
perform the duties of his said employment, and faithfully and
truthfully report all his transactions as such employe, and
faithfully account for and pay over to the plaintiff all
moneys and notes received by him for the plaintiff's use
in said employment.
"And
said plaintiff then and there agreed to pay said Ed. C.
Scott, as compensation for his services as such employe,
forty per cent. of the gross profits of the sales made by
him, the said Ed. C. Scott, as such employe, less his
expenses and forty per cent. of the losses made by him.
"And
thereupon, on the day of April, 1892, the said Ed. C. Scott
executed and procured his co-defendants, Samuel C. Scott,
James R. Bryant and David W. Hughes, to execute jointly with
him to the plaintiff their certain bond and writing
obligatory, a copy of which is filed herewith and made a part
hereof, marked Exhibit 'A,' in the sum of twenty-five
hundred dollars ($ 2,500.00), conditioned that the said Ed.
C. Scott would faithfully perform the duties of his said
employment, and faithfully and truthfully report all his
transactions as such employe, and faithfully account for and
pay over to the plaintiff all moneys and notes received by
him for plaintiff's use.
"And
the said defendants having so, as aforesaid, executed said
bond, they delivered the same to Ed. C. Scott for delivery by
him, to the plaintiff, and the said Ed. C. Scott on the day
of April, 1892, delivered the same to the
plaintiff, which said bond the plaintiff then and there
approved and accepted, and said defendant thereupon entered
upon his duties as such employe and so thereunder continued
in said employment from the 5th day of April, 1892, until the
19th day of December, 1892, as said defendants then and there
and at all times well knew.
"That
between the 5th day of April, 1892, and the 19th day of
December, 1892, the said defendant, Ed. C. Scott, as such
commercial traveler, salesman and employe, received money to
the value and aggregate sum of $ 3,500.00 to the use of the
plaintiff, for which he has failed and refused to account to
the plaintiff, and has converted the same to his own use, to
plaintiff's damage, in the sum of $ 3,500.00, which is
due and unpaid.
"That notice of said default was promptly given by
plaintiff to said defendants, and payment of said bond
demanded of them, but to pay the same or any part thereof
they wholly failed and refused, and the same remains due and
wholly unpaid. Wherefore plaintiff demands judgment for $
3,000.00."
