Weed Sewing Mach. Co. v. Philbrick

• Decision Date: 31 October 1879
• Citation: 70 Mo. 646
• Parties: THE WEED SEWING MACHINE COMPANY v. PHILBRICK et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 646

THE WEED SEWING MACHINE COMPANY

v.PHILBRICK et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Holt Circuit Court--HON. H. S. KELLEY, Judge.

REVERSED.

T. H. Parrish for appellants.

Ewing, Pope & Hough for respondent.

HOUGH, J.

This was a suit on a bond alleged to have been given to the plaintiff by one Charles R. Mosier, as principal, with the defendants as sureties, to secure any indebtedness of said Mosier, to the plaintiff, which might arise out of his agency for said company. The bond sued on was alleged to have been executed in lieu of a former bond given by the same parties, which had been lost. The terms and conditions of the original bond are specifically set forth in the petition, which then proceeds as follows: “Plaintiff further states that afterwards the said Charles R. Mosier, as such principal, and said Cyrus Philbrick and James T. Howell, defendants, as such securities, on the 17th day of August, 1874, made, executed and delivered to the Weed Sewing Machine Company a duplicate bond of same date, tenor and effect as said lost bond, which is herewith filed; and it was understood and agreed by the parties at the time, that the said duplicate bond should stand and be in lieu of said lost bond, and take the place thereof, unless the original bond was found, whereupon the said duplicate was to be returned to said defendants; but said plaintiff avers and alleges that said lost bond has never been found.” The petition then sets out the alleged breaches of said duplicate bond. The answer of the defendants denies each and every allegation of the petition.

At the trial the duplicate bond was offered in evidence by the plaintiff, and the defendants objected to the reading of the same for the reason that it did not appear that the original bond was lost or had not been found, and was not now in the possession of the company; but the objection was overruled by the court and the bond was read in evidence. The only testimony as to the loss of the original bond was the statement of a witness that he had procured the execution of the duplicate bond sued on, and that prior to taking said bond he had understood from the officers of the company that the original bond was lost. No testimony whatever was offered to show that it had not since been found. During the cross-examination of plaintiff's first witness, the defendants presented and asked leave to file an amended answer verified by affidavit, denying the execution of the bond sued on. The court refused to permit the amended answer to be filed, and the trial proceeded upon the original answer and resulted in a judgment for the plaintiff, from which the defendants have appealed.

1. BOND...