Lake v. Thomas

• Decision Date: 05 January 1897
• Citation: 36 A. 437,84 Md. 608
• Parties: LAKE ET AL. v. THOMAS.
• Court: Maryland Court of Appeals

36 A. 437

84 Md. 608

LAKE ET AL. v. THOMAS.

Court of Appeals of Maryland

January 5, 1897

Appeal from circuit court, Wicomico county.

Action by Frank L. Thomas against Charles Lake and others, surviving obligors of Edward W. Le Compte, on a bond. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, ROBERTS, BOYD, and BRISCOE JJ.

F. H Fletcher and John J. Pattison, for appellants.

Sewell T. Milbourne and Alonzo L. Miles, for appellee.

BRISCOE J.

The appellee brought suit against the appellants as surviving obligors on a bond conditioned for the faithful performance of duty by an agent employed by him. The record in the case presents the questions argued upon this appeal in a very unsatisfactory manner. It contains voluminous pleadings, the bond sued on, and merely an agreement as to a few of the facts involved. The case was tried before the court below without the intervention of a jury. No bill of exceptions was taken to any of the rulings of the court, and the appeal is from a judgment for the plaintiff. The main question on the appeal is, were the defenses relied on properly presented by the pleadings in the case? The bond sued on was executed October 2, 1891, and recites that the plaintiff, Thomas, had employed the principal obligor, John E. Sard, as his agent in selling and leasing sewing machines, in the discretion of Thomas, and in collecting money due upon such sales, etc and for the discharge of any and all duties connected with said business. It also provides that, "upon the first call or demand of said Thomas after he [the agent] has received or collected any money for the use or benefit or belonging to Thomas, he will make a return thereof, and pay the same over to him or his order." The condition of the bond was that the same "shall be void if John E. Sard shall well and truly do and perform all his duties connected with said agency, and shall well and faithfully fulfill and perform all his agreements and undertakings in the premises, but otherwise to remain in full force and virtue in law." The breach assigned by the declaration is that Sard, under the agency, after the date, execution, and delivery of the bond, did receive and collect certain moneys for the use and benefit of Thomas, but did not pay over the moneys so received and collected, although demand for such payment was duly made, etc. To the declaration the defendants filed seven pleas. Subsequently the third, fourth, and fifth pleas were amended, and the amended pleas will be here considered as taking the place of the pleas first filed, because the original pleas bearing the same numbers must be considered as withdrawn. Mitchell v. Williamson, 9 Gill, 71. We will, then, consider the pleas in their order:

The first alleges that Sard never collected the moneys as alleged; the second, that he paid over the moneys collected by him. Issue was joined on these pleas, and there is no contention as to their correctness. The third plea alleges that the plaintiff changed the time and manner of settlement as provided in the bond, and to this plea the plaintiff demurred. Now, the bond, which is a part of the declaration provided that Sard should pay over the money collected by him upon the first call or demand of Thomas. And as, under this bond, no particular time of settlement was provided for, but the whole matter was left to the discretion of Thomas, the demurrer to this plea was properly sustained. The plea is also defective in not alleging that the sureties were injured by the alleged change in the time and manner of settlement, because, if the changes were made after a defalcation, and after the liabilities of the sureties had become fixed, it would be no defense to the action. McShane v. Bank, 73 Md. 135, 20 A. 776. While a surety is discharged if the contract is materially changed without his consent, yet an agreement between the creditor and the principal obligor which is not a binding contract to extend the time of payment or change the original contract does not...