Weed Sewing Mach. Co. v. Maxwell
| Decision Date | 31 October 1876 |
| Parties | WEED SEWING MACHINE COMPANY, Plaintiff in Error, v. EMMA MAXWELL, et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Phelps Circuit Court.
Botsford & Williams, for Plaintiff in Error, cited: Smiley vs. Head, 2 Rich. [S. C.] 590; Maggs vs. Ames, 4 Bingh. 470; Stillwell, Ex'r vs. Bertrand, 22 Ark. 375; St. Alban's Bank vs. Dillon, 30 Vt. 122; 4 Bingh. Inf., 470; 7 N. H. 368; 1 Pars. Cont. 494; Whitcoorth vs. Carter, 43 Miss. 61, (decided in 1870); Foxworth vs. Bullock, 44 Miss. 457; Jones vs. Crosthwaith, 17 Iowa, 393; Kimball vs. Newell, 7 Hill, 116; Add. Cont. 37; Chit. Cont. [10 Am. ed.] 547; 2 Pars. Cont. 4; 1 Pars. Bills, 244; Davis vs. Statts, 43 Ind. 103.
C. C. Bland, for Defendants in Error, cited: Tuttle vs. Hoag, 46 Mo. 38; Coughlin vs. Ryan, 43 Mo. 99; Coats vs. Robinson, 10 Mo. 757; 23 Mo. 457; 46 Mo. 114; 46 Mo. 532; 32 Mo. 252; Miller vs. Brown, 47 Mo. 504; Lincoln vs. Rowe, 57 Mo. 571; Abbott's N. Y. Dig., vol. 3, p. 313; vol. 6, pp. 303, 304.
This was a suit brought in the circuit court of Phelps county, founded upon a contract entered into by defendant, Emma Maxwell, with plaintiff, and a bond executed by defendants, Emma Maxwell, as principal, and Thomas Maxwell and James G. Bradish, as securities. The petition alleges that plaintiff, under the terms of the contract, was to furnish defendant, Emma Maxwell, sewing machines at St. Louis, at a discount of 25 per cent. from the retail price of such machines, and also accessories and findings, at wholesale prices, for which settlements were to be made by note at four months after date of each invoice; that defendant agreed to sell said machines, keeping for that purpose a proper place in the town of Rolla, and to sell only the machines manufactured and furnished by plaintiff, and to settle and pay for all purchases made of plaintiff according to the tenor and conditions of the agreement. It is also alleged, that for the purpose of securing plaintiff in the sale of said machines, the defendant, Emma Maxwell, as principal, and defendants, Maxwell and Bradish, as sureties, executed a bond to plaintiff in the sum of $1,000, with the condition that it was to be void only on the performance, by the said Emma Maxwell, of all the stipulations of the said agreement by her to be performed according to the true meaning thereof.
It is further alleged that plaintiff, in the months of October, November and December, furnished sewing machines to defendant, Emma Maxwell, and that she executed three promissory notes to plaintiff in the aggregate sum of $364.43, which she had failed to pay.
Separate answers were filed by Emma Maxwell and her husband, Thomas Maxwell, in which the execution of the agreement and bond were admitted, and set up the coverture of Mrs. Maxwell, at the time of their execution, as a bar; and further, that the notes mentioned in the petition were taken by plaintiff in discharge of the bond.
Defendant Bradish also filed a separate answer, setting up substantially the same defense.
Plaintiff filed a replication to both answers, alleging that, at the time of the execution of the contract and bond, Mrs. Maxwell was conducting business as a sole trader upon her own account, and that her husband had no control over it or connection therewith.
On the trial plaintiff offered evidence tending to establish al the facts alleged in his petition and replications to the answers of defendants. There was no evidence offered by the defendants. The court, sitting as a jury, found a verdict for defendants, and rendered judgment in their favor, to reverse which plaintiff brings the case here by writ of error.
The court, against the objection of plaintiff, gave the following instruction for defendants:
“The court declares the law to be, that upon the pleadings defendants are entitled to a judgment for costs, in that it is admitted that defendant, Emma Maxwell, is a married woman; that a judgment at law cannot be rendered against the said Emma Maxwell, it being admitted that she is a married woman; that the bond read in evidence is a nullity, in that it is signed by Emma Maxwell, principal.”
The proposition stated by the court, that Emma Maxwell having executed the bond while she was a femme covert, it was not enforcible at law against her, was correct. As to...
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...to execute the bond in suit, so that the same could not be enforced against him, yet this would be no defense for the surety. Machine Co. v. Maxwell, 63 Mo. 486; Baker Kennett, 54 Mo. 82. (5) The proceedings for the appointment of both trustees, Johnston and Hitch, were properly based on se......
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...co-sureties, whether the two written obligations were one bond or two bonds executed at different dates. 32 Cyc. 17; Weeds Sewing Machine Co. v. Maxwell, 63 Mo. 486; Peoples Lumber Co. v. Gillard, 136 Cal. Henwood, C. Davis and Cooley, CC., concur. OPINION HENWOOD The plaintiff school distr......
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School District v. Security Bank
...co-sureties, whether the two written obligations were one bond or two bonds executed at different dates. 32 Cyc. 17; Weeds Sewing Machine Co. v. Maxwell, 63 Mo. 486; Peoples Lumber Co. v. Gillard, 136 Cal. HENWOOD, C. The plaintiff school district filed this suit, in the Circuit Court of Bu......