Victor Sewing-Mach. Co. v. Crockwell

• Decision Date: 14 March 1882
• Parties: VICTOR SEWING-MACHINE CO. v. CROCKWELL & BASSETT ET AL
• Court: Utah Supreme Court

1 P. 470

3 Utah 152

VICTOR SEWING-MACHINE CO. v. CROCKWELL & BASSETT ET AL

Supreme Court of Utah

March 14, 1882

APPEAL from the third district court. This cause was first argued at the June term, 1880, and the opinion filed September 25, 1880 (see 2 Utah 557); subsequently upon the allowance of a petition for a rehearing, the case was reargued, and the following opinion was delivered. Hon. Jacob S. Boreman, who delivered the first opinion, having in the mean time resigned, he was succeeded by Hon. Stephen P. Twiss. The opinion states the facts.

Case remanded.

Bennett & Harkness, for the appellant.

Sutherland & McBride, for the respondents.

TWISS J. EMERSON, J., concurred. HUNTER, C. J., dissented.

OPINION

TWISS, J.:

This case comes before us upon a motion for rehearing. The plaintiff seeks to recover judgment upon a bond signed by the defendants Crockwell & Bassett as principals, and the other defendants as sureties, upon the breach of a contract between the plaintiff and Crockwell & Bassett. The condition of the bond is "that if said Crockwell & Bassett shall pay unto said Victor Sewing-Machine Company all moneys due or which shall become due said Victor Sewing-Machine Company, under or pursuant to the within contract, whether by notes, renewals or extension of notes, or accounts, acceptances indorsements, or otherwise, hereby waiving presentment for payment, notice of non-payment, protests, or notices of protest, and diligence, upon all notes now or hereafter executed, indorsed, transferred, guaranteed, or assigned, and shall well and truly keep and perform in all respects according to its true intent, the contract or agreements to which this obligation is attached, * * * then this obligation to be void; otherwise to remain in full force and virtue."

The contract is voluminous, containing stipulations directing in detail the performance of the business therein proposed or contemplated by the parties, which was the consignment of sewing-machines by the plaintiff, a corporation having a place of business in Chicago, to Crockwell & Bassett, at Salt Lake City, and the sale thereof by them, as consignees, who were to devote their entire time to the introduction and sale of the Victor sewing-machines, for cash on delivery, if possible, but were allowed, under certain restrictions, to sell upon time, taking notes therefor payable to the plaintiff. All promissory notes so taken were to be guaranteed by the consignees and delivered to the consignor; the blank indorsement thereof by the consignees before delivery to the plaintiff was, by the terms of the contract, made and understood to be a guaranty of the payment of such notes; that the consignees were to report within the time mentioned all sales, whether for cash or for notes, and remit all moneys received; and that the plaintiff should sell parts of machines and attachments to Crockwell & Bassett, which were to be settled for with cash every thirty days, unless otherwise mutually agreed, and that the consignees might give their personal notes for such machines as they might dispose of otherwise than for cash or note.

The complaint charges that under and in pursuance of said contract, the defendants Crockwell & Bassett gave their orders to the plaintiff for machines and parts of machines; that said orders were received and accepted, and the machines and parts of machines ordered were accordingly delivered; and that Crockwell & Bassett failed and refused to remit to the plaintiff an alleged balance of the proceeds of such machines, and to pay an alleged balance for parts of machines and attachments sold and delivered by plaintiff to them on their order. The plaintiff asks for judgment for the aforesaid balances, as shown by the detailed and itemized accounts referred to in and annexed to the complaint.

The defendants, in their answers, plead the statute of limitations...