Jenkins v. Phillips

• Decision Date: 08 December 1897
• Citation: 48 N.E. 651,18 Ind.App. 562
• Parties: JENKINS v. PHILLIPS et al.
• Court: Indiana Appellate Court

18 Ind.App. 562

48 N.E. 651

JENKINS

v.PHILLIPS et al.

Appellate Court of Indiana.

Dec. 8, 1897.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action on bond by Samuel Phillips and another against William Jenkins and another. From a judgment for plaintiffs, defendant William Jenkins appeals. Affirmed.

T. S. Rollins and Blackledge & Thornton, for appellant. D. H. Bowles, for appellees.

COMSTOCK, J.

Appellees were plaintiffs below. Process was returned “Not found” as to one Gibson, who was named as defendant in the complaint. The demurrer of appellant for want of facts was overruled. Upon the trial, at the request of appellant, the court made a special finding of facts and conclusion of law thereon. The conclusion of law was favorable to the appellees, and judgment was rendered thereon for $156.50,-being $150 for principal, $6.50 interest.

Appellant assigns for error that the court erred in its conclusion of law upon its special findings. The findings are, in substance, as follows: Appellees, co-partners as Phillips & Patterson, are manufacturers of pants, overalls, and other clothing. On July 6, 1895, they made an oral contract with Robert Gibson (that the appellant had knowledge of the terms of said contract), by which they employed Gibson as a traveling salesman to travel through Michigan, and there obtain orders for and sell goods of their manufacture. That it was agreed that at the expiration of his employment, when ordered by appellees, Gibson should return all samples of goods and clothing intrusted to him in reasonably good condition. That upon said date, in consideration of said contract, and to secure performance of said condition, Gibson and appellant, as his surety, executed to appellees their bond, of which the following is a copy: “Know all men by these presents, that we, Robert Gibson, of the town of Fargo, in the state of North Dakota, and William Jenkins, of Indianapolis, Indiana, as security, are held and firmly bound unto Phillips and Patterson in the sum of one hundred and fifty dollars. * * * The condition of the obligation is that the samples intrusted to us be returned to said Phillips and Patterson, when ordered, in reasonably good condition.” Appellees, on said date, accepted said bond, notified appellants of its acceptance, and thereupon delivered to Gibson samples of their goods to the value of $163.50. Appellant was not present when the goods were delivered, and never saw any of them. Gibson absconded with the goods. They have never been returned. Gibson's whereabouts are not known. The whereabouts of the samples are not known. Appellant was promptly notified of Gibson's default. He refused to pay the penalty of the bond.

Counsel for appellant contend that the condition of the obligation is that the samples be delivered to both the obligors,-“to us,”-not to the principal alone; that the samples were intrusted to the principal alone, and without the knowledge of the surety; that the condition of the bond was not complied with, and that, therefore, the surety was released; that sureties are favorites of the law, and are not bound beyond the strict terms of the engagement. This last proposition is nowhere questioned. Numerous illustrative cases are cited in the able briefs of counsel. City of Lafayette v. James, 92 Ind. 243;Graeter v. De Wolf, 112 Ind. 2, 13 N. E. 111. A bond is to be read in the light of the contract it is given to secure. The contract, as the court found appellant knew, was to intrust samples to Gibson. The bond was to secure their return to appellees. The contract and bond should be construed together. The contract was not that they should be delivered to the appellant. The words used are not equivalent thereto. Neither could a joint possession have been contemplated. Appellant lived in Indianapolis. Gibson was to travel in Michigan. “The bond and the contract of agency, having been executed contemporaneously, are to be read together; and they are necessarily related to, and, so far as respects the bond, dependent upon, each other. The extent of the engagement of the guarantors is to be measured by the terms of the contract which they signed, considered in reference to the nature of the transaction under contemplation at the time, and the agreement entered into by the principal for the due execution of which they agreed to answer.” Manufacturing Co. v. Forsythe, 108 Ind. 334, 9 N. E. 372. “The bond and the contract of agency, having been executed concurrently, must be construed together. It cannot be assumed that the bond was intended as a security for the payment of debts which were not contemplated in the contract of agency, or a guaranty for the performance of obligations wholly outside of the contract with which it was executed. Its scope must, therefore, be restrained to the terms of the contract between the sewing-machine company and Sale.” Sewing-Mach. Co. v. Winchel, 107 Ind. 260, 7 N. E. 881. See, also, Irwin v. Kilburn, 104 Ind. 113, 3 N. E. 650;Burns v. Manufacturing Co., 87 Ind. 541;McDonald v. Heustis, 1 Ind. App. 275, 27 N. E. 509;Tolman Co. v. McClure, 10 Ind. App. 28, 37 N. E. 289;Belloni v. Freeborn, 63 N. Y. 383; Baylies, Sur. p. 111; Engine Co. v. Park, 3 Ind. App. 173, 29 N. E. 444;Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232. In Beers v. Strimple (Mo. Sup.) 22 S. W. 620. the court said: “As there is a dispute as to the meaning of the contract, it may be said here that the contract of a surety must be construed like other contracts; that is to say, according to the intent of the parties. There should be no strained construction in order to release or hold the surety. The contract of the surety is to be construed according to what is fairly to be presumed to have been the understanding of the parties,...