Appeal from District Court, Dallas County; E. B. Muse, Judge.
TALBOT, J.
This suit was instituted by the appellant against the appellees to recover the sum of $2,202.64, and interest. The petition, omitting formal parts, is as follows: "Now comes the Stein Double Cushion Tire Company, a corporation with its principal office at Akron, Summit county, Ohio, hereinafter called plaintiff, complaining of William T. Fulton Company, a corporation of the state of Texas, with its principal office at Dallas, Dallas county, Texas, with William T. Fulton as president of said corporation, and the Southwestern Surety Insurance Company, a corporation incorporated under the laws of Oklahoma, with its principal office at Denison, Grayson county, Texas, with W. B. Munson as president of said corporation, hereinafter styled defendants, and for cause of action plaintiff represents to the court: That heretofore, to wit, on or about the 22d day of December, 1910, plaintiff, at the instance and request of said defendant William T. Fulton Company, and in accordance with a contract with the said William T. Fulton Company, hereto attached and marked Exhibit A, and made a part hereof, sold and delivered to it certain goods, wares, and merchandise of the value of $2,202.64, the items of which and the prices therefor, as well as the dates on which the same were sold, appear from the itemized account hereto annexed and marked Exhibit B, and made a part hereof; that defendant William T. Fulton Company, in consideration that plaintiff should sell to it, agreed to furnish and deliver to the said plaintiff a good and sufficient bond issued by a surety company and to be approved by the plaintiff in the penal sum of $5,000.00, to be conditioned upon the complete performance of the contract above referred to and the payment of any and all indebtedness and liability which the said William T. Fulton Company may owe or become liable for under said contract. Plaintiff further alleges that under the terms of said contract that on or about the 22d day of December, 1910, a bond as above referred to was furnished in accordance with the said contract by William T. Fulton Company, as principal, and the Texas Surety & Insurance Company, a corporation of the state of Texas, with its principal office at San Antonio, Texas, as surety, in the penal sum of $5,000.00, a copy of which bond is hereto attached, and made a part thereof, and marked Exhibit C; that on or prior to September 11, 1911, the defendant Southwestern Surety Insurance Company reinsured from the Texas Surety & Insurance Company, of San Antonio, Texas, the bond given by defendant William T. Fulton Company, and referred to as Exhibit C, and in consideration that plaintiff deliver to said William T. Fulton Company the goods aforesaid, in accordance with the contract marked Exhibit A, reinsured the above bond, and agreed to be answerable to the plaintiff for the payment by said William T. Fulton Company of the prices of the goods sold and delivered in accordance with said contract and the assumption by the Southwestern Surety Insurance Company of the bond marked Exhibit C; that said goods, wares, and merchandise were sold and delivered to the said William T. Fulton Company under the terms of said contract and on the faith of said guaranty of the bond hereto attached and assumed by the Southwestern Surety Insurance Company, and plaintiff duly notified the bond company of same; that, upon failure by said defendant William T. Fulton Company to fulfill the terms of said contract, plaintiff on or about September 14, 1911, notified the defendant Southwestern Surety Insurance Company that payment of amount due herein sued upon and fulfillment of the terms of said contract had been duly demanded from the said William T. Fulton Company, but had totally failed to pay the same or any part thereof, all of which the defendant Southwestern Surety Insurance Company had due notice, whereby the defendant Southwestern Surety Insurance Company had promised and became bound and liable to pay the same, but, though often requested defendants have hitherto failed and refused and still now refuse to pay the same or any part thereof, to plaintiff's damages in the sum of $2,202.64. Wherefore plaintiff prays the court that defendants be cited to appear and answer this petition and for judgment for its debt, $2,202.64, interest and costs of suit, and such other and further relief, special and general, in law and in equity that it may be justly entitled to," etc.
The contract referred to in said petition and made a part thereof, which is dated August
1, 1910, and signed by the parties, is as follows:
"This agreement, between the Stein Double Cushion Tire Company of Akron, Ohio, herein called the party of the first part, and William T. Fulton Company, of the city of Dallas and state of Texas, herein called the party of the second part, is as follows:
"First. The first party above named, being desirous of extending its business in the state of Texas, hereby agrees to furnish the party of the second part solid and cushion rubber tires on consignment to the amount of six thousand dollars ($6,000.00), to be stored and held in the name and under the control of the party of the first part under the conditions as hereinafter set forth: Provided, however, that the financial standing of the party of the second part and his surety hereinafter mentioned and all transactions as required are at all times satisfactory to the said party of the first part.
"Second. The said party of the second part is to furnish a suitable place in the city of Dallas, Texas, for the storage of the said rubber tires, and is to keep the same insured at all times in the name of the party of the first part, said insurance to equal at least 80 per cent. of the value of the said material. Insurance policies to be sent to the party of the first part.
"Third. The party of the second part agrees to sell and ship from said stock, and shall report to the party of the first part on the 1st day of each month all sales made, together with a scale or weight inventory of the stock on hand, from said consigned stock, settlements for same to be made on the 10th of each month for all goods sold the previous month, deducting 2 per cent. as a cash discount.
"Fourth. Said first party agrees to furnish to the party of the second part first-class rubber tires of the best quality they manufacture for the prices herein mentioned, and guarantee same to be free from all defects or imperfections in material and workmanship, and to replace all tires not in accordance with its guarantee.
"Fifth. The price agreed upon for the present is as follows: No. 10½ X Round Cushion at 50 cents per pound. This price is regulated by the price of crude rubber, which in case of decline in the market it is agreed and understood that the contract price as above mentioned shall be made correspondingly lower, and, in the event of the still further advance in the price of crude rubber, the contract price will be advanced correspondingly, and this matter to be taken up by both parties hereto and adjusted satisfactorily when occasion shall require.
"Sixth. Said second party agrees that he will not sell or dispose of during the life of this agreement any other solid or cushion rubber tires other than those manufactured by the first party, and will use all reasonable efforts to introduce and promote the sale of the goods herein mentioned.
"Seventh. In order to insure the performance of this contract by the party of the second part, and the payment of any and all indebtedness and liability which the said second party may owe to or become liable for under this agreement, the party of the second part agrees to furnish and deliver to the said first party a good and sufficient bond issued by a surety company to be approved by the party of the first part in the penal sum of five thousand dollars ($5,000.00), to be conditioned as aforesaid, and, until such bond is executed, delivered, and approved as aforesaid, no part of this agreement shall take effect.
"Eighth. The said first party agrees to brand the tire with a name to be selected by the party of the second part, said brand, however, not to conflict with any other brand now in use.
"Ninth. This agreement to become operative when signed by party of the second part and countersigned by an officer of the Stein Double Cushion Tire Company, and to continue in force one...
