Singer Manufacturing Co. v. Allen

• Decision Date: 04 May 1877
• Citation: 122 Mass. 467
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Singer Manufacturing Company v. E. C. Allen & another

122 Mass. 467

Singer Manufacturing Company v. E. C. Allen & another

Supreme Court of Massachusetts

May 4, 1877

Argued October 3, 1876

Worcester. Contract against E. C. Allen and Otis D. Sawin, on a bond, dated November 19, 1872, executed to the plaintiff by Allen as principal and Sawin as surety, and containing the following condition:

"The condition of the above obligation is such that if the above bounden E. C. Allen his heirs, executors or administrators shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of the said E. C. Allen to the said the Singer Manufacturing Company, whether such indebtedness or liability shall exist in the shape of book accounts, notes, renewals, or extensions of notes or accounts, acceptances, indorsements, or otherwise, hereby waiving presentment for payment, notice of non-payment, protest and notice of protest and diligence upon all notes now, or hereafter executed, indorsed transferred, guaranteed, or assigned by the said E. C. Allen to the said the Singer Manufacturing Company, then this obligation to be void; but otherwise to remain in full force and effect."

At the trial in the Superior Court, before Putnam, J., it appeared that the alleged breach of the condition of the bond was the non-payment of a promissory note signed "Allen & Waite," payable to the order of the plaintiff, and that the defendant, Allen was one of the firm of Allen & Waite, who signed the note, the consideration of which, its protest and non-payment, were not disputed.

The plaintiff, a corporation established under the laws of New York, to show the intention of the defendants in executing the bond, the extent of the liability of both defendants under the bond to the payment of the firm note, and to explain the meaning of the term "or otherwise" in the condition of the bond, and to establish the liability of the defendants to pay said firm note by reason of the execution of the bond, offered to prove by competent witnesses the following facts: The company was accustomed to employ agents to sell sewing machines upon their filing a bond, similar in substance to the bond declared on, with sufficient surety. Its duly authorized agent employed the firm of Allen & Waite as its agents in the business of buying and selling sewing machines upon their furnishing individual bonds, to wit, the bond of the defendant Allen with the defendant Sawin as surety, and the bond of Waite with one Luke Waite as surety. Prior to, and at the time of the execution of the bond by the defendants, both knew that Allen then contemplated becoming the partner of Waite, the joint maker with him of the note. The defendant Sawin, upon being requested by the plaintiff's agent to sign a bond of the firm of Allen & Waite, refused to do so, on the ground that he did not desire to be held responsible for more than the defendant Allen's half of the firm's liability to the plaintiff, but was willing to sign the bond of the defendant Allen with that understanding of the limit of his liability to the plaintiff. The defendants then executed the bond in suit. The defendant Sawin expressly agreed with the plaintiff, that he would, by signing the bond, become responsible for the defendant Allen's half part of the debts, which the firm of Allen & Waite might thereupon and thereafter contract with the plaintiff. Waite gave a similar bond to the plaintiff, with the same agreement and understanding between Waite and his surety on the one side, and plaintiff on the other, limiting their liability to Waite's half of the liability of the firm of Allen & Waite in the firm's business with the plaintiff. The plaintiff, since the execution of the bond sued on, never had any dealings or account with either the defendant Allen or Waite...