Good Roads Machinery Company v. Moore

• Decision Date: 14 November 1900
• Docket Number: 3,159
• Citation: 58 N.E. 540,25 Ind.App. 479
• Parties: GOOD ROADS MACHINERY COMPANY v. MOORE ET AL
• Court: Indiana Appellate Court

58 N.E. 540

25 Ind.App. 479

GOOD ROADS MACHINERY COMPANY v. MOORE ET AL

No. 3,159

Court of Appeals of Indiana

November 14, 1900

From the Kosciusko Circuit Court.

Affirmed.

D. H Bowles, W. A. Bastian and W. W. Thornton, for appellant.

L. W Royse, Bertram Shane, J. W. Cook, A. G. Wood, and F. E Bowser, for appellees.

OPINION

HENLEY, J.

The material averments of appellant's first paragraph of complaint are that by written contract dated February 8, 1897, it appointed appellee Moore its agent for the sale of road machinery in Indiana and a part of Illinois; that appellees Hoover, Stinson, and Foster became the sureties for said Moore by signing a bond indorsed on the back of said contract, conditioned for the faithful performance by said Moore of the obligations imposed upon him by the contract with appellant; that Moore failed to remit and account for the proceeds of the sales made by him under the contract with appellant. Judgment for the amount so withheld is demanded against Moore and his sureties. Copies of the contract and bond and a bill of particulars showing the amount claimed are filed with and made a part of the complaint.

It is averred in the second paragraph of the complaint that by written contract of date above mentioned, the appellant appointed said Moore as its agent for Indiana; that appellees Hoover, Stinson, and Foster became sureties as aforesaid, but that long prior to said date said Moore had desired to represent appellant in the state of Illinois, as well as in Indiana, and had been negotiating with appellant on that subject; but that appellant at that time had promised a part of Illinois to other agents and could not tell what part of Illinois he would be able to assign to said Moore; that appellant prepared and sent to said Moore a contract in which was printed the following clause: "In and for the following named territory, viz., the State of Indiana and ;" that a blank was left after the word "and" of two and one-half lines of said printed form; that appellant told said Moore that as soon as it learned what part of Illinois it could assign him, a description of the part assigned would be inserted in the contract where the blank lines were left after the word "and"; that the contract in such condition with the bond, indorsed on its back, was signed by said Moore, and the bond was signed by his sureties and was so delivered to appellant; that thereafter, appellant having ascertained what part of Illinois it could assign said Moore, filled in at the request of said Moore and after the word "and" in said contract the following words: "Illinois north of and not included in the counties of Adams, Pike, Scott, Morgan, Macoupin, Montgomery, Shelby, Coles, and Edgar."

It is averred that exhibit A filed with the complaint is a copy of the contract with the blank filled up as heretofore set out. The failure to comply with the terms of the contract in remitting money to the appellant is averred, and the same relief prayed for as in the first paragraph. Appellees Hoover, Stinson, and Foster separately demurred to the second paragraph of the complaint. The court held the second paragraph of the complaint insufficient as against a demurrer for want of facts. Appellees Hoover and Stinson answered jointly, and appellee Foster severally. These answers were in five paragraphs, a general denial and four special paragraphs. The averments of the answers were identical. Appellant's demurrer for want of facts to the last four paragraphs of each answer was overruled. Error is assigned only in the overruling of appellant's demurrer to the fourth paragraph. In the fourth paragraph of the answer of Hoover and Stinson, and in the fourth paragraph of the separate answer of Foster, it is averred that after the bond had been signed and delivered, the appellant, without the knowledge or consent of said appellees, altered and changed the contract between itself and said Moore by writing in and adding after the word Indiana that part of the state of Illinois which the contract contains. To these four paragraphs of answer appellant filed three paragraphs of reply, to the second and third of which demurrers for want of facts were sustained. The first paragraph was a general denial; the second paragraph avers that after the contract was made Moore applied for permission to sell in said part of Illinois in addition to Indiana, and that appellant gave such permission and consented thereto in writing, by inserting in the contract after the words "in the State of Indiana and" the words "Illinois north of" etc., and that such insertion was made for the purpose of giving and evidencing in writing its consent that Moore might sell outside of the territory originally allotted.

The third paragraph of reply in its averments is very similar to the second paragraph of the complaint, averring the fact of appellant's inability at the...