Appeal
from circuit court, Walker county; James J. Banks, Judge.
Action
by White Sewing-Machine Company against J. W. Saxon and
others. From a judgment in favor of defendants John B
Richardson and E. W. Miller, plaintiff appeals. Affirmed.
This
action was brought to recover for the breach of a bond which
had been given by the defendants to the plaintiff to secure
the faithful performance by Saxon of the duties as agent of
the plaintiff company. The bond was set out in the complaint
and was conditioned that the said J. W. Saxon should pay to
the White Sewing-Machine Company all moneys or indebtedness
obtained or incurred by said Saxon through his agency in the
sale of sewing machines for the plaintiff, and that he should
faithfully perform all the duties incident to such agency.
The stipulation of the bond relating to the liability of each
person signing it, without any regard to any understanding
that it should be signed by other persons, is copied in the
opinion. This bond was executed on August 16, 1893, and the
plaintiff averred that the said Saxon was indebted to it in
the sum of $986.86 for goods, wares, and merchandise sold by
plaintiff to J. W. Saxon on the strength of said bond, and in
pursuance of the conditions thereof, commencing on August 22
1893, and continuing until April 30, 1894, and that the said
Saxon had failed to pay over to the plaintiff the sum thus
due, and thereby there was a breach of said bond, rendering
the defendants liable. To this complaint the defendants
demurred, but, the demurrers being overruled, it is
unnecessary to set them out on this appeal.
The
defendants pleaded the general issue, and, among others, the
following special pleas, each of which was verified by
affidavit of the respective defendants: "(7) Comes the
defendant J. B. Richardson, and for answer to the complaint
says that this defendant delivered the said bond to J. W
Saxon to become an instrument executed by this defendant only
on condition that the same should be executed by three or
four other good men, and then delivered to plaintiff, but was
not to be delivered to plaintiff until the said three or four
other good men had executed it,-all of which the said
plaintiff knew at the time it acquired possession of said
bond; and the said plaintiff, knowing these facts
fraudulently procured the possession of the said bond from
the said J. W. Saxon, and fraudulently concealed from these
defendants the delivery of the said bond by J. W. Saxon
without the signatures of the said three or four good men who
were to sign before the said J. W. Saxon had authority to
deliver it, until after the said J. W. Saxon had operated
under it as alleged in the complaint. (8) Comes the defendant
J. B. Richardson, and for further answer to the said
complaint says that there was, at the time this defendant
signed it, a memorandum attached to said bond upon which the
action is founded, in words as follows: 'N.B. Each
signature must be witnessed by some person, who shall sign
his name as such witness in the blank space to the left of
the line on which such signature appears;' and this
defendant says that neither his signature to said bond nor
that of his co-surety was witnessed by any person who signed
his name as a witness, but this defendant says that W. G.
Ware, who was the duly-authorized agent of the plaintiffs,
after he had obtained possession of the same, without the
knowledge or consent of this defendant, placed his (said
Ware's) name as a witness to the signatures to said bond,
with a fraudulent intent. (9) Comes the defendant J. B.
Richardson, and for further answer to the said complaint says
that at the time the said plaintiff, by their agents,
obtained the possession of the said bond which is the
foundation of this action, there was no subscribing witness
thereto, and this defendant says that the said plaintiffs,
without the knowledge or consent of this defendant, procured
the name of W. G. Ware to be placed thereto as a subscribing
witness, with a fraudulent intent." "(11) Comes the
defendant E. W. Miller, and for answer to the complaint says
that he never executed the bond sued on, either by himself or
by any one authorized to bind him. (12) Comes the defendant
E. W. Miller, and for answer to the complaint says that this
defendant delivered the said bond to J. W. Saxon to become an
instrument executed by this defendant only on condition that
the same should be executed by three or four other good men,
and then delivered to plaintiff, but was not to be delivered
to plaintiff until the said three or four other good men had
executed it,-all of which the said plaintiff knew at the time
it acquired possession of said bond; and the said plaintiff,
knowing these facts, fraudulently procured the possession of
the said bond from the said J. W. Saxon, and fraudulently
concealed from these defendants the delivery of the said bond
by J. W. Saxon without the signatures of the said three or
four good men who were to sign before the said J. W. Saxon
had authority to deliver it, until after the said J. W. Saxon
had operated under it as alleged in the complaint. (13) Comes
the defendant E. W. Miller, and for further answer to the
complaint says that there was, at the time this defendant
signed it, a memorandum attached to said bond upon which the
action is founded, in words as follows: 'N. B. Each
signature must be witnessed by some person, who shall sign
his name as such witness in the blank space to the left of
the line on which such signature appears; ' and this
defendant says that neither his signature to said bond nor
that of his co-surety was witnessed by any person who signed
his name as a witness, but this defendant says that W. G.
Ware, who was the duly-authorized agent of the plaintiffs,
after he had obtained possession of the same, without the
knowledge or consent of this defendant placed his (said
Ware's) name as a witness to the signatures to said bond,
with a fraudulent intent. (14) Comes the defendant E. W.
Miller, and for further answer to the said complaint says
that at the time the said plaintiffs, by their agents,
obtained the possession of the said bond which is the
foundation of this action, there was no subscribing witness
thereto, and this defendant says that the said plaintiffs,
without the knowledge or consent of this defendant, procured
the name of W. G. Ware to be placed thereto as a subscribing
witness, with a fraudulent intent."
To the
seventh and twelfth pleas the plaintiff demurred upon the
following grounds: "(1) Because it does not allege the
names of the 'three or four other good men who were to
sign the bond.' (2) It is too indefinite and uncertain in
its averments as to the condition upon which said defendant
signed said bond. (3) Said plea shows on its face that
defendant is estopped to deny the validity of said bond
inasmuch as it shows on its face that he signed and delivered
the bond to the principal debtor, J. W. Saxon, and thereby
put it in the power of said Saxon to make a valid delivery of
said bond." To the eighth, ninth, thirteenth, and
fourteenth pleas the plaintiff demurred upon the following
grounds: "(1) Because the matters and things therein
alleged as an answer to said complaint are immaterial, and,
if true, constitute no defense to the action. (2) The fact
that said Ware signed his name to said bond as a witness
after the same was signed by defendant and delivered to him
does not vitiate the bond, nor in any manner affect its
validity. (3) The said bond was such an instrument as did not
need to be witnessed or attested in order to its validity.
(4) The plea fails to show what the fraudulent intent was
with which Ware signed his name to said bond." The
demurrers to each of these pleas were separately overruled.
To the seventh, eighth, ninth, twelfth, thirteenth, and
fourteenth pleas the plaintiff filed the following
replications: "(1) The plaintiff denies the averments
therein contained. (2) Plaintiff says said defendants are
estopped to make said defense after they signed said bond,
and plaintiff acquired possession thereof. They, having
knowledge of the delivery of said bond to plaintiff,
permitted plaintiff to sell goods on said bond to said Saxon,
without objection, till long after the goods were sold and
delivered to Saxon under this bond for the price of which
this action is brought. (3) After said bond was delivered to
plaintiff in the manner stated in said pleas, said defendants
well knew that said J. W. Saxon was operating under said
bond, and getting credit from plaintiff by reason thereof,
upon the faith and credit of said bond as a valid instrument;
and yet said Miller and Richardson permitted said Saxon to
continue to buy goods under said bond without ever informing
plaintiff of said alleged defense to said bond till long
after the accounts and notes were made upon which this action
is based, and therefore said Miller and Richardson are
estopped to take advantage of the matters of defense set up
in said pleas. (4) Said defendants waived their rights to
make the defense set up in said pleas, in the condition of
the bond sued on, as appears fully from the complaint by the
following stipulation, viz.: 'Each one signing this bond
is bound by the purport of it without any regard to any
understanding that any person should also sign this
instrument; and the person to whom this is intrusted has
absolute authority to deliver it, and the same is made and
shall be considered without reference to any other instrument
or agreement whatsoever; and any agreement or arrangement
with any of the signers hereof to discharge or release any of
them shall be void, and of no binding effect upon the White...
