Singer Mfg. Co. v. Hibbs
| Decision Date | 19 April 1886 |
| Citation | 21 Mo.App. 574 |
| Parties | THE SINGER MANUFACTURING COMPANY, Appellant, v. L. HIBBS, Respondent. |
| Court | Kansas Court of Appeals |
APPEAL from Bates Circuit Court, HON. JAMES B. GANTT, Judge.
Affirmed.
Statement of case by the court.
This action was brought against defendant as surety upon a bond in the penal sum of five hundred dollars, in which bond one George Warriner was principal. Said bond was dated June 27 1879, and contained the following condition:
" The condition of the foregoing obligation is such that, whereas, the said The Singer Manufacturing Company has appointed the above bounden G. Warriner agent of it, the said The Singer Manufacturing Company, for the purpose of selling sewing machines, and for the purpose of collecting moneys due them on notes, leases, or other accounts; and,
Whereas as such agent, the said G. Warriner has no authority to sell or dispose of any such machines, otherwise than as specially authorized and directed by the said The Singer Manufacturing Company, and at such prices and upon such terms as may be fixed by them, from time to time, nor to do any act except as specially directed by them;
Now, if the said G. Warriner shall well and faithfully perform and discharge his duty as such agent, as shall be specified in any and all agreements which he has, or may hereafter make with the said The Singer Manufacturing Company, and shall well and truly, from time to time, pay over and deliver to the said The Singer Manufacturing Company, all moneys, bonds notes, leases, agreements, contracts, property and things of value whatsoever, which he, as agent of the said The Singer Manufacturing Company, may hereafter collect, or receive, or obtain; and shall, also, well and truly perform all obligations and duties, and pay to the said The Singer Manufacturing Company all just debts, claims and demands, which are now, or may hereafter, become due and owing by the said G. Warriner to said The Singer Manufacturing Company; and shall at the expiration of his (the said G. Warriner), agency of the said The Singer Manufacturing Company, render a true account of, and deliver to said The Singer Manufacturing Company all property, choses in action, debts, evidences of debt, and money, which he may have in his hands, then this obligation to be void; otherwise, to be and remain in full force and effect."
On June 27, 1879, the plaintiff and the said Geo. Warriner entered into a written contract, by which the latter was employed to sell the plaintiff's sewing machines at Mound City, Kansas, and vicinity. The duties of the said Warriner were at considerable length set out in the contract. Among other provisions in said contract was the following:
" It is further agreed between the parties aforesaid that this agreement may be altered, amended, or changed, in writing, but not otherwise, with the consent of both parties, and may be terminated at the pleasure of either party."
On July 1, 1882, the plaintiff and the said George Warriner entered into another agreement in writing. By the latter agreement said Warriner became the plaintiff's " agent at its branch office at Fort Scott, Kansas, for the sale of its sewing machines, and for such other business as it may authorize him to transact."
By the latter agreement, said Warriner's duties, as well as compensation, were in many, if not in most respects, different.
The breaches of the bond complained of occurred after the execution of the latter agreement. Said latter agreement was made without the knowledge or consent of the defendant.
" Mound City is the county seat of Linn county, Kansas, and Fort Scott the county seat of Bourbon county, Kansas, and the two towns are from twenty-five to thirty miles apart, and the counties are adjoining to each other, Bourbon lying to the south of Linn."
These facts are learned from the agreed statement of facts, upon which the case was submitted to the court, sitting as a jury.
The court found for the defendant, and the plaintiff has appealed.
J. D. PARKINSON, for the appellant.
I. The declaration of law asked for by plaintiff and refused, should have been given as the law applicable to the contract created by the bond sued on. Singer Manufacturing Co. v. Hester, 6 F. 806; Domestic Sewing Machine Co. v. Webster, 47 Iowa 354.
II. The declarations of law asked for by defendant, and given, should have been refused. They are based upon the general doctrine of suretyship, and ignored the clauses of the bond which except it from the general doctrine and make it a continuing indemnity. Ins. Co. v. Sedgwick, 110 Mass. 163; Singer Manufacturing Co. v. Allen, 122 Mass. 469.
III. The bond contains the following clause: " It is further agreed between the parties aforesaid that this agreement may be altered, amended, or changed, in writing, but not otherwise, with the consent of both parties." And this clause, with the words in the bond: " As shall be specified in any and all agreements which he has or may hereafter make," makes the agreement (new contract) a contemporaneous writing. The clauses together constitute an agency in Warriner by Hibbs to make the second agreement, and bind him by it, if made in writing, as stipulated. Broom's Legal Max. 598; Sewing Machine Co. v. Webster, 47 Iowa 357.
WILLIAM PAGE, for the respondent.
I. It is universally held that the undertaking of a surety is to receive a strict interpretation, and is not to be extended beyond the fair scope of its terms, and any material change in the terms of the contract with the principal will discharge the surety. Blair v. Ins. Co., 10 Mo. 560; Nolley v. Callaway County Court, 11 Mo. 447; ...
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