Singer Mfg. Co. v. Reynolds

• Decision Date: 15 June 1897
• Citation: 168 Mass. 588,47 N.E. 438
• Parties: SINGER MANUF'G CO. v. REYNOLDS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 588

47 N.E. 438

SINGER MANUF'G CO. v. REYNOLDS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 15, 1897

COUNSEL

Anson M. Lyman, for plaintiff.

John D McLaughlin, for defendants.

OPINION

BARKER J.

The bond was given by the defendants jointly and severally. The declaration is in one count against them both, and they appeared by the same counsel, who filed one answer for both. The finding is against them jointly for $500, as the penal sum of the bond, with an order for execution against both for a sum found due upon chancering the bond in accordance with Pub.St. c. 171, §§ 9, 10. The defendant Reynolds was employed by the plaintiff, and three written contracts concerning his employment were entered into between him and the plaintiff,--one at the same time as the bond, and the others on November 5, 1892, and June 17, 1893, respectively. The first and second were alike, and the third differed only in providing that Reynolds should be paid a commission on all moneys collected and paid over by him, in addition to the salary and commission on sales stipulated in the earlier contracts. It did not appear that the defendant Leonard had actual knowledge of the making of the last contract. The presiding justice, sitting without a jury, held that the penal sum of the bond was $500, found against the defendants in that sum, and included in his award of the amount for which execution should issue a sum of $50, which was agreed to be a reasonable sum for services rendered by the plaintiff's attorney.

1. The first contention is that neither defendant is liable upon the bond, because Reynolds' defaults occurred after the making of the last contract, by which they contend that he was newly employed, and the risk substantially increased. The bond states that it "is expressly intended as a continuing guaranty"; and the condition, after reciting that Reynolds has entered the employ of the plaintiff company "for the transaction of such business as they may intrust to him," is, in substance, that he shall faithfully perform his duties to the plaintiff "by virtue of his said employment, or otherwise, and whether under or in the absence of any present or future contract agreement, or understanding, verbal or written, or any change whatever therein, either with or without notice to either of said obligors, other than the said employé." These explicit stipulations cover the defaults of Reynolds under the last contract, which is within the precise terms of the bond. See Insurance Co. v. Sedgwick, 110 Mass. 163; Manufacturing Co. v. Allen, 122 Mass. 467; Bank v. Carleton, 136 Mass. 226; Railroad v. Loring, 138 Mass. 381. The cases of Chelmsford Co. v. Demarest, 7 Gray, 1; Manufacturing Co. v. Lawrence, 1 Allen, 339; Railroad v. Elwell, 8 Allen, 371; and School Fund v. Dean, 130 Mass. 242,--cited by the defendants, are not in point.

2. The defendants contend that the written statement or admission of Reynolds was not admissible in evidence against Leonard. But the action was a joint action against both. It sufficiently appears that Reynolds was the principal, and Leonard a surety. The admission of the principal was, under our decisions, admissible against both. Martin v. Root, 17 Mass. 222, 227; Frye v. Barker, 4 Pick. 382, 384; Bridge v. Gray, 14 Pick. 55, 61; Amherst Bank v Root, 2 Metc. 522, 541. It is urged that this doctrine should no longer be applied, because parties to actions may now testify, and because several judgments may now be rendered against joint defendants. But the doctrine has been restated by this court since those changes in practice have occurred. See Choate v. Arrington, 116 Mass. 522,...